anchor
stringlengths 60
12.5k
| positive
stringlengths 32
27.7k
| negative_1
stringlengths 63
27.2k
| negative_2
stringlengths 67
27.7k
| negative_3
stringlengths 63
27.7k
| negative_4
stringlengths 32
27.7k
| negative_5
stringlengths 53
27.7k
| negative_6
stringlengths 90
27.7k
| negative_7
stringlengths 67
27.7k
|
|---|---|---|---|---|---|---|---|---|
What if the travel insurance plan document has coverage "editorial" error? I've posted this question because I've never bought travel insurance and I'm interested in the consequences of editorial errors. To illustrate such an error, I've posted a specific example from a real company with a good reputation (a financial institution that sells but does not service the travel insurance). From the financial institution's website You will be provided with a complete Plan Document upon purchase of the plan. If you would like to review the Plan Document, please click below. Download Plan Document Selected text from the downloaded plan Benefits are not payable for any loss due to, arising or resulting from: participating in bodily contact sports, skydiving or parachuting except parasailing, hang gliding, bungee cord jumping, extreme skiing, skiing outside marked trails or heli-skiing, spelunking or caving, or scuba diving if the depth exceeds 120 feet (40 meters) or if You are not certified to dive and a dive master is not present during the dive; ---------- This is how I interpret the text: We do not pay benefits for any loss that is due to, arises from, or results from your participation in these sports: bodily contact sports, skydiving, or parachuting. Except we do pay for parasailing, hang gliding, bungee cord jumping, extreme skiing, skiing outside marked trails or heli-skiing, spelunking or caving, or scuba diving if you do so at more than 120 feet or if you are not certified to dive and a dive master is not present. Assumptions and Question In the original text of the plan, I bolded the word "except" so that it would stand out to anyone reading this post. The word "except" is reading (to my eyes) as an exclusion to an exclusion, so the listed sports are ok as long as you do something extra risky. (Note: To catch the nuance, you might have to slowly read the original out loud or have someone read it to you.) One could also assume that the purchased plan documentation will (a) supersede all other plans, and (b) will not have the same type of error. But what if it (the purchased plan) does have the same error, and you engage in one of the "excluded except [for]" activities? For example, do purchased insurance plans tend to have clauses that give them an "out?" Note: There may be no real answer to this question. In which case, I hope readers at least find some dark humor here. It's also possible that I've misread the text and need to be guided on how to read (interpret) it in a different way. If so, then American English is the standard. | I think you're reading it incorrectly. I would read it as saying that the following are not covered: participating in bodily contact sports, skydiving or parachuting except parasailing hang gliding bungee cord jumping etc. So parasailing is covered. All other types of skydiving and parachuting are not. Hang gliding is not covered, bungee cord jumping is not covered, etc. In other words, the scope of the "except" is only "parasailing" and is terminated at the comma. | Read your policy Insurance contracts spell out in excruciating detail in which circumstances they are on risk and which they aren’t. For example. In that policy, page 39 excludes "Loss or damage caused by lopping or felling of trees when this is performed or authorised by you, your family, or a household member". So DIY tree felling is at your risk. So is authorising a contractor to fell a tree (although you would presumably look to the contractor's insurer for restitution) You would be covered if a neighbour (or their contractor) dropped a tree onto your house or if a utility company did so. They didn't need or get your authorisation so the exclusion does not apply. | If the lawyer has legitimate concerns, his first port of call would be the ICO https://ico.org.uk/. Before the ICO will take his complaint further he'll have had write to you expressing his concerns and received a written response that presumably he is unhappy with, and wants to take the issue further. Most companies have a data compliance team who will have policies and procedures to log breaches like this and decide what course of action to take in response. Not every breach needs to be brought to the attention of the ICO, and they have a handy self assessment tool to see if you should report the breach. https://ico.org.uk/for-organisations/report-a-breach/ In your situation, I don't think this constitutes a serious breach which will require investigating. It's simply an admin error. If it is unlikely to pose a risk to any of the individuals they will say something like: You should keep an internal record of the breach as detailed in Article 33 (5) of the GDPR, including what happened, the effects of the breach and remedial actions taken. The definition of risk according to the ICO is: "This risk exists when the breach may lead to physical, material or non-material damage for the individuals whose data have been breached". So in this case I'd assume a simple apology (Bcc'd :) ) and a record of what happened, how it happened, and the action taken to prevent it happening again should suffice. | If they actually mean $0, then that is not "taking advantage". If they do not mean $0, it is most likely that they will tell you "Sorry, we made a mistake, we're not gonna send you that Rolex for $0 plus shipping". If this came with free shipping, then you would not actually have a contract, because there s no consideration on your part (no payola). Fortunately, there is shipping, so there is a contract. You could then attempt to force them to send you the goods, which they might do rather than irritate you, but not if it is a Rolex. One of the defenses against enforcing a contract is "mistake", and a $0 Rolex would be a great example of that. Things get a bit more tricky if you relied on their free Rolex. You would look up the doctrine of promissory estoppel, to see if the seller could be estopped from making the mistake argument. Let's say that you also bought a Rolex Display Case from someone else at a cost of $100 plus shipping. By relying on their promise to sent you a Rolex, you have suffered a loss. The most likely outcome is that they'd have to reimburse your Display Case expense. (Finding) mistake airfares is an industry: a common response for the airline is to say "Oops, sorry", though sometimes they honor the mistake fare. Rumor has it that rather than get trashed on Twitter, the airlines honor mistake fares. You may find disclaimer language pertaining to verification of prices and availability, which also gets them off the hook. At any rate, you certainly won't be sued or prosecuted for assuming that they mean it and buying the thing; you might be disappointed. | I think the question answers itself : what's being put forward as a problem (that official organisations can cover their members' liability at events) is actually their main advantage. Liability doesn't go away - assuming your friend's lawyer's advice was accurate, it might have been better phrased as "liability will be on the participants". I'm not sure it's entirely right (though it might just be overly specific) in the way it's been reported - if there was anything that could be considered incitement to, or encouragement of, unlawful activity, there may be an additional liability on the person whose name is attached to the group, and possibly the platform used (though this is a young area of law at the moment). What's covered by the insurance will be dependent on the policy, so that's not a question that The Bloke On The Internet can answer. In terms of discounts, I don't see any reason these couldn't be offered on a social media group - or that there would be a significant difference between a social media group, an official or unofficial website, or coupons published in a magazine or distributed in flyers on a street corner. It's worth bearing in mind that distributors don't do this out of kindness - it's just advertising. If an official club, or the associated manufacturer (the owner of the brand), believed there was quantifiable loss - primarily financial, but possibly reputational - there may be grounds to demand any unofficial group cease and desist, irrespective of where (social media, websites, physical premises) they had a presence. But perhaps the greatest advantage (though I'm drifting off topic for this SE) for an official group is that it can use whichever medium it considers most useful at the time, or a combination of several. One tied to a specific social media platform will always be limited in its longevity. | No, it does not. There is indeed a 2-year guarantee for all goods, but "goods" is defined to be a "tangible movable item" according to Directive 1999/44/EC Article 1, subsection 2(b). In less legalese, a physical item; software doesn't count. While there has been discussion about extending this protection to software, I'm not aware of this having been done yet. Even if it were, determining whether goods are "faulty" ultimately comes down to whether it conforms to the contract of sale (Article 2). I think it's likely that vendors in this area would put a disclaimer for unforeseen security vulnerabilities, or something to that effect. | I am unfamiliar with a "perpetual contract" and that phase does not appear in any reported appellate court decision of the State of Oklahoma. However, usually unpaid utility bills do constitute a lien against the property that is enforceable against a subsequent purchaser, which has the same practical effect. This kind of obligation is also sometimes described as an "encumbrance". Usually, in an arms length sale of real estate through real estate agents, a title insurance company is hired and is responsible for determining if there are any outstanding liens, pro-rating utility bills, pro-rating property taxes, etc. at closing. If the title company fails to find a lien and there is one, the title company is responsible for paying off the lien that it failed to find (although it can often force the previous owner to indemnify it for the payment it has to make). It could be that since water service was not currently being delivered, that the title company did not search in the manner that it should have to find this lien, or it could be that there was no title company used and so no one ever checked. Also, if the property was conveyed with a "warranty deed" such a deed contains a promise from the seller that there are no liens or encumbrances not listed on the face of the deed that have to be paid, and the seller has liability for breach of the warranty of title. But, if the property was conveyed with a "quitclaim deed" there is no such warranty. | How Are Liability And Insurance Matters Usually Disclosed? Normally, in a car sharing arrangement, you must establish a membership or account with the car sharing firm that includes all of the terms and conditions of the agreement between the parties (at least by reference to a document that you acknowledge that you have had an opportunity to read), often in connection with downloading an app necessary to use the service. I also strongly suspect (as a comment below indicates) that if you dug around enough on the firm's webpage that a link to the relevant terms and conditions could be found, even if it wasn't in the most obvious place. But, this information will often not be on the firm's main landing page of their website, and can instead often only be reached with multiple clicks and/or drop down menus. Sometimes this is called a "terms of service", sometimes this is called a "master agreement", sometimes it is called a "membership agreement" or "account agreement". My list of names for this agreement is not exhaustive. Often these terms are also described elsewhere in simplified form, such as a "how to" brochure, or information that is posted on the interior of the vehicle itself or in a sleeve of documents in the car. Usually, in the course of the sign up process there would typically be a box to click and a link or scrollable portion of the screen at which you can review all of those terms and conditions which are the terms of the contract. What Must Advertising Say And Why? It is not generally necessary for the advertising itself to disclose every term and condition and detail of the arrangement. Generally speaking, an advertisement is considered merely an "invitation to make an offer" to enter into a contract, rather than an offer which can be accepted directly and form a contract. Of course, a particular jurisdiction's legislature certainly has the power to require that a car sharing company disclose liability and insurance information in a particular fashion set forth in a statute or regulation, if that jurisdiction's legislative body chooses to do so. Even when these issues are mentioned in advertising (even when some disclosure is required by law in adverising), usually this would be in the form of a sentence that incorporates another document by reference like "Additional terms and conditions, including terms and conditions related to liability and insurance, that can be found at . . . . apply." This is due to the practical reality that TV and radio ads are usually just 15-60 seconds allowing about 25-100 words or perhaps a few more if the announcer speaks quickly, and that ads in print or on a screen also typically have room for only a very small amount of text. Websites, in principle, provide an effectively infinite amount of capacity to host content, but considerations of ease of website use and the need to make the landing page striking for marketing purposes (as well as the need to make websites mobile user friendly when that is the only way that many Internet users can access the web) usually relegates the legal terms of the agreement to less attention grabbing locations. Often, these terms are disclosed more conspicuously when the terms and conditions change materially, something that often has its own little PR campaign accompanying it. Unilaterally Imposed Contracts of Adhesion One reason that disclosure isn't such a huge issue is that car share agreements are almost always mass produced, not up for negotiation, "contracts of adhesion" that only senior management of the firm has the authority to modify. In the case of these intangible contractually agreed services, the terms of the agreement are more akin to a non-negotiable product design than to the paradigmatic haggled legal agreement between parties. Thus, a customer has only two choices. Use the service according to the standard terms, or don't use the service. Given this reality, the average buyer of the services relies upon the market place rejecting contracts of adhesion with bad terms, upon testimonials (good and bad) from prior users of the service, and upon media publicity for notorious terms or incidents that makes it look like the business doesn't treat it customers well, to keep the agreements reasonable, rather than upon individualized decisions to use or not use the service based upon a detailed review of the contract terms. There are legal doctrines pertaining to contracts of adhesion that invalidate terms that are unconscionable or not within the reasonable expectation of a consumer unless those terms of conspicuously disclosed. A classic example, for example, would be that a car share agreement that imposed extraction of a kidney as a fine for being one days late in paying an invoice would be void as a matter of law, even if the referenced document said so in bold large face type and the customer clicked a box acknowledging having read the agreement. What Happens If There Is No Agreement Or Disclosure? If there was never a step at which the terms and conditions were disclosed or accepted, then the default rules of law pertaining to personal property leasing, together with the laws pertaining to automobile accidents and insurance (both statutory and case law) in the jurisdiction in question. In almost all cases, liability to third parties for accidents is generally a matter of tort law or statute imposed by the government, rather than being something that can be modified by agreement. Also, usually the government imposes minimum insurance requirements and the owner of the car also has an incentive (and often a legal requirement) to have car insurance in force. In the United States, the default rules of law pertaining to personal property leasing, are set forth in Article 2A of the Uniform Commercial Code, which has been adopted in every U.S. State, the District of Columbia, Puerto Rico, and each self-governing U.S. territory with its own internal laws. In countries Europe or Latin American or Asia known as "civil law" countries (i.e. in those countries outside the British common law tradition, the Islamic law legal tradition, tribal or clan or caste law, or legal systems with communist regime roots established in the 20th century), the equivalent default rules of law (governing personal property leases, contracts to provide services, leases and insurance) would be contained in either a civil code or a commercial code of that country in most cases. In common law countries, the contractual agreements tend to be longer than the default provisions of law are skinnier. In civil law countries, the reverse is true. A hybrid of these two approaches which also limits the need of customers to monitor contract terms is the regulatory model commonly used in the insurance industry in the United States takes the reality that contracts of adhesion are the norm and gives it a regulatory twist. In this hybrid model, all of the boilerplate language of every insurance contract down to the last word of non-customized or only semi-customized language, and often fee schedules as well, must be substantively improved by a state agency that regulates insurance. In these models, a public official negotiates the terms of the contracts with the firms, subject to intervention in and participation in the process by industry associations and non-profits or interested individuals on behalf of consumers or other interested parties. In these hybrid systems, the approved contract language which can't be modified in the boilerplate language by either the firms or the customers, is on file with the regulatory agency and provides constructive notice to all parties in much the same way as a statute or government regulation. If not enough material terms of the agreement (e.g. the rental rate) were disclosed to form a contract, then there would be no enforcement contractual arrangement involved in the car share and the car share company would have to rely on the law of unjust enrichment to recover the fair market value of the services provided in each case, which as a practical matter, wouldn't be viable as a business model. Distinctions Between The Two Kinds Of Car Sharing Arrangements There is some ambiguity in the question because there are a couple main types of car sharing arrangements. One is more like a rental car and you drive the vehicle yourself (Car2Go is one of them). In this case, the firm typically provides car insurance and does a limited background of a prospective account holders driving record before allowing someone to use the service. But, the user of the service, who drives the car, would be primarily liable for any accident that the car gets into. The other kind, sometimes called a "car share" and sometimes called a "ride share" is more like an Uber or Lyft, which is a glorified, on demand taxi service, in which a driver provides the services of the driver and the vehicle and takes car of insurance and will be primarily liable for any accident the car gets into as a driver and owner of the car. |
Is it possible to find all U.S. federal laws digitized and online? Are all of the federal laws in the United States digitized and available to the public through some free ".gov" website? Is it possible to download them all into, say, PDF? | See http://uscode.house.gov/download/download.shtml to start. But what exactly do you mean by a "law"? Lots falls under that term: do you include case law? SCOTUS decisions? Administrative policies? Read earlier Law SE question Naive approach to aggregating all US Federal Laws? | Generally, no. Legislatures pass laws. The fact that someone else knows more about the thing they're passing laws about is utterly irrelevant -- the power to make laws is given to the legislature, not to experts. If the legislature thinks experts should make the rules on something, they can delegate (this is why the FDA approves medicine rather than Congress), but the legislature of a state generally has the power to pass any law that is not unconstitutional. Your analogy to paper money is a poor one: that's a federalism thing, not an expertise thing. Congress has established a system of paper money, and states can't interfere with that. It's not that the Fed thinks paper money is good, it's that Congress said paper money shall be a thing. That could stop a state from banning an FDA-approved drug; however, since marijuana is illegal under federal law, it would be odd to conclude that banning it at the state level as well is preempted. Legislators aren't inherently experts on anything (except being elected). That doesn't matter. They have the authority to pass laws, even if those laws directly go against the views of people who are recognized experts in the area. You appear to think there must be a judicial remedy against bad policy. You would be wrong. The role of the courts is not to decide what policies are good or bad; they are concerned only with what is legal. Deciding what policies are good or bad is a matter for the democratically elected representatives of the people, or for the people themselves in states with ballot questions. It is not the job of the courts. | You are wrong that they never get into legal trouble. It isn't terribly common but it certainly happens to those that get relatively prominent. Many of the folks doing the copyright infringement are judgement proof. It makes little sense for Disney, for example, to sue some guy living in his parents' basement for uploading a clip of their movie when that guy has no assets. Financially, it wouldn't be worth the cost of a lawyer. Many of the folks doing the copyright infringement are in jurisdictions that look the other way. If you're a Russian citizen pirating content owned by American companies, the Russian authorities aren't going to cooperate and arrest you and the American companies likely can't recover any judgement they'd get because you don't have any assets in America. There is a whack-a-mole problem. If there are hundreds of people posting pirated content to Facebook and each one is running hundreds of pages, that's tens of thousands of pages posting content. By the time you identify and close all of them, the pirates will have created tens of thousands of new pages. There is a cat-and-mouse problem. Copyright owners have automated tools to scan for their IP to issue takedown notices. Piraters know this so they modify the video (posting it as a mirror image or adding some additional video elements) in order to evade the automated tools. If copyright owners have to manually identify pirated content, it's realistically not cost effective to do so. The humans finding that content would cost more than the business loses in revenue to pirates. Tracking down the actual human/ business behind the copyright infringement is often a fair amount of work and may involve motions in courts in multiple countries. That work tends not to be highly prioritized by law enforcement. If you're a small fish, it is unlikely that anyone would go to the effort of unmasking you in order to sue. | Why do attorneys have these? Originally to use as references, although some kinds of books (e.g. case law reporters, Shepard's citations, Martindale Hubble directories, and serial analysis of case law like Am. Jur.) are rarely used that way any more. When I started practice in the mid-1990s, it cost several hundred dollars an hour to access online legal sources (that were less comprehensive and had lower quality search functions than the service that comes free with my bar membership today), so the vast majority of legal research was done with hard copy case reporters, digests and annotated statute books. A complete set of case reporters for a single state would typically run to hundreds of volumes with new ones arriving monthly. A full set of Shepard's Citations (which told you if a case have been overturned or questioned in later cases or just where it was cited with approval) took roughly a full shelf of a full sized book case when limited to a single state. Any law firm that is at least fifteen or twenty years old needed them when they bought them and lawyers hate to throw anything away. Case law research is now predominantly online. The last time I used Shepard's citations and hard copy case reporters on a regular basis was a decade ago. Law journal research is also predominantly online now. I sent most of my uglier and numerous law books (including several dozen volumes of an outdated legal encyclopedia summarizing case law) to the recycling bin about six or seven years ago. Do they actually reference them, especially when so much information is searchable and indexed online? Lawyers still routinely use statute books in states where they practice, court rules, standard jury instructions, and to a somewhat lesser extent treatises on different areas of the law (including the Restatements of Law). Now and then, lawyers will still use a hard copy of a West Digest. And, I have yet to encounter a lawyer who doesn't have at least one or two decent sized book cases full of law books. In statutes and court rules (and regulations), typesetting details that can get mangled online are important and browsing a structured text can be easier to do on paper than online. There are some regulations available only in online versions that I print for ease of use (e.g. Colorado's marijuana regulations and its Medicaid regulations). I also print for ease of use my state's title standards (for use in determining if someone has marketable title to real estate), even though they don't have the force of law. I also keep a few hard copy model statutes with the official commentary. It can also be hard on the eyes to look at a computer screen non-stop all day, so looking at something you use regularly on paper can be a relief. Are the books updated regularly? or are these the books they graduated with, and are rarely changed out? Statutes and court rules and jury instructions are typically updated annually, following each year's legislative session. Treatises are updated with "pocket parts" every year, that are added to a hardbound edition that is updated at most, every several years. A pocket part is a softbound update with the same section organization as the underlying treatise that has a flap the fits into a pocket in the back flap of a hard cover treatise. Bigger "pocket parts" are printed as thin softcover bonus volumes to the original treatises. I also keep a current softbound "Bluebook" (the reference regarding how legal materials should be cited to in legal documents and legal scholarship) and several high end dictionaries including Black's Law Dictionary, the OED and a few others in hard copy (because browsing is easier when you don't know exactly how a word is spelled). I keep many of my law school textbooks, which some people do, and other people don't, and I buy new treatises especially when I move into a new area of law practice where background guidance is useful. Do the books exist purely for psychological impressions, or is there a utilitarian purpose? Both. Sometimes old books that don't have much ongoing practical use are kept on the shelves because they are pretty. For example, I don't really need a hard copy of my outdated New York State Statutes, but they look good (even though I practice mostly in Colorado and look up New York State statutes online when I need to actually use them). But, I use hard copy statutes and court rule books for the state where I practice on pretty much a daily basis and use hard copy treatises at least several times a week in my law practice. In that respect, I am not atypical, although I probably use hard copy books more than younger lawyers do. Of course, even among these books, some volumes are used much more often than others. I look at a volume of insurance industry regulation statutes at most, once a year, while I read the volume related to divorce and probate at least once or twice a week, for example. Hard copy books are also useful for pinning down the corners of blueprints and surveys when you are in litigation where those kinds of oversized paper documents are at issue. ;) | This falls within the penumbra of Feist v. Rural Telephone. The principle articulated there is that facts are not subject to copyright protection, but the expression of facts can be. Quoting from the ruling, "no author may copyright his ideas or the facts he narrates...however, it is beyond dispute that compilations of facts are within the subject matter of copyright". The distinction between protected vs. not protected hinges on originality: "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author". But it is not sufficient that the work is created by the "sweat of the brow" of an author: it must possess at least some minimal degree of creativity. Thus "[t]he writings which are to be protected are the fruits of intellectual labor, embodied in the form of books, prints, engravings, and the like". As a concrete example, the ruling states "Census-takers, for example, do not 'create' the population figures that emerge from their efforts; in a sense, they copy these figures from the world around them...Census data therefore do not trigger copyright because these data are not 'original' in the constitutional sense." But, compilations of facts can be protected: Factual compilations, on the other hand, may possess the requisite originality. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws An email list requires nothing more than brow-sweat, and even then, not much. A cleverly annotated and arranged email list would involve substantial creativity and would be subject to protection. That does not mean that you didn't sign some agreement that prohibits you from copying or using the list, but it isn't a matter of copyright. | The US election authorities already record who voted in which elections, and that information is a matter of public record. When I was active in politics some years ago, and at one point a candidate for local office, my campaign and others routinely purchased from the state a "voter list" for each district. This list showed each registered voter, with that person's name, address, age (to the nearest year), party of registration if any, and in which of the last several (I think 10) elections that person had voted. These were delivered in electronic form, and could be sorted and analyzed in whatever way the purchaser pleased. I understand that similar lists are available in every US state, I think from a legal point of view, a picture would reveal no more information than these already-public lists, and since they have not been successfully challenged as unconstitutional, I don't see that the pictures would be subject to such a challenge, unless it could be shown that taking such pictures had a chilling effect, that is, that taking them made certain categories of voters, such as minority voters, less likely to vote. I am not aware of any specific federal or state laws on taking pictures of voters. But if there were a chilling effect, that would probably violate the Equal Protection Clause of the Federal Fourteenth amendment. That clause has been central, or at least significant, in most challenges to voter restrictions, both successful and unsuccessful. But since, as far as I know, no state or other US jurisdiction has tried this, there is no caselaw on point, and one cannot be sure how such a case would be resolved. Whether this would be good policy is a very different question, and where it would be politically acceptable is yet another. Neither of those are on topic here on Law.se, although they might be on Politics.SE. | If there's a reason to believe that your machine has data that would be relevant to a lawsuit, then yes, it is subject to inspection under Fed. R. Civ. P. 34: A party may serve on any other party a request ... to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control: ... any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form. So if there's a lawsuit where there becomes a question about what you downloaded from the network, then it's quite plausible that your device could be demanded or subpoenaed. But that's not the same thing as "forfeiting" your device. The normal procedure in such a case would be that the agency's lawyers would notify you of the demand, and you would take your device to an ESI expert, who would make a digital image of the device's hard drive. The parties would then fight about what portions of that image they are allowed to access, but you would have your device again while that was going on. | There is a special exception in 17 USC 105: Copyright protection under this title is not available for any work of the United States Government, but the United States Government is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise. In the definitions, A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties. |
Is there a difference between "illegal activity" and "criminal activity"? What is the difference in meaning and use of the phrases "illegal activity" and "criminal activity"? Is one broader than the other? | Illegal activity is activity that contravenes the law. Criminal activity is illegal activity that is also a crime. What constitutes a crime is usually detailed in a criminal code in each jurisdiction but can derive from common law crimes like murder, arson, rape etc. A crime is an offense against society and is generally prosecuted by the state. For example (may vary by jurisdiction): Breaking a contract - illegal Stopping in a No Stopping zone - illegal Negligently polluting the environment - illegal Breaking someone's arm - crime Deliberately ramming someone with your car - crime Recklessly polluting the environment - crime | Nothing is typical Investigators have wide discretion on how (and if) they pursue an investigation of an alleged crime. When they make an arrest is part of that discretion. Making an arrest starts all sorts of clocks running on the legal process and investigators may not want to do that for all sorts of legitimate reasons. | Note that an essential element of the offense here is "with purpose to use it criminally." The specifications in B allow a presumption of such purpose, but such a presumption is rebuttable. The tools of a locksmith are somewhat different from those of a criminal "cracksman", I understand, and would probably not be considered "designed or specially adapted for criminal use". But even if they were, proof of regular employment as a locksmith would tend to rebut the presumption of criminal intent. Possession of tools with the intent of lawfully opening one's own lock would not be criminal intent, but a judge or jury might not be convinced of that. | Yes. In the United Kingdom it is illegal under the Computer Misuse Act 1990. In other jurisdictions there may not be a law directly aimed at computer crime but if you sell it knowing that a crime is going to be committed with it that makes you an accomplice. Most computer crime is prosecuted under laws not directly aimed at computer misuse. | united-kingdom Assuming "editor" does not authorise the player to flood the game with bots then this would be an offence contrary to section 3 Computer Misuse Act 1990 (with relevant provisions emboldened by me): (1) A person is guilty of an offence if— (a) he does any unauthorised act in relation to a computer; (b) at the time when he does the act he knows that it is unauthorised; and (c) either subsection (2) or subsection (3) below applies. (2) This subsection applies if the person intends by doing the act— (a) to impair the operation of any computer; (b) to prevent or hinder access to any program or data held in any computer; or (c) to impair the operation of any such program or the reliability of any such data; or (d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done. (3) This subsection applies if the person is reckless as to whether the act will do any of the things mentioned in paragraphs (a) to (d) / to (c)of subsection (2) above. (4) The intention referred to in subsection (2) above, or the recklessness referred to in subsection (3) above, need not relate to— (a) any particular computer; (b)xany particular program or data; or (c) a program or data of any particular kind. (5) In this section— (a) a reference to doing an act includes a reference to causing an act to be done; (b) “act” includes a series of acts; (c) a reference to impairing, preventing or hindering something includes a reference to doing so temporarily. (6) A person guilty of an offence under this section shall be liable— (a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both; (b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both; (c) on conviction on indictment, to imprisonment for a term not exceeding ten years or to a fine or to both Whether or not game cheating would be prosecuted is fact dependant. | Is asking police to justify their orders illegal? NO but the manner in which the "asking" is done may be. | If you read the first link, every offense can lead to arrest without a warrant. Notwithstanding, you don’t have to be arrested to be charged and vice -versa. | There is a legal concept of de minimis: the idea that some offenses, civil or criminal, are too small to be worth prosecuting. For example, a photograph of a city scene that incidentally captured part of a copyrighted billboard in one corner of the image infringes the copyright on that billboard. But if the copyright holder were to sue, it's virtually certain the suit would be thrown out due to the minimal nature of the infringement. Technically speaking, yes, what you describe is a crime. But any prosecutor who tried to bring charges to that effect is likely to be chewed out by the judge for wasting everyone's time. (Incidentally, assuming the reporter and property owner are US citizens, the crime is failure to cross at a designated crossing point (19 USC 1459, a customs offense) rather than improper entry (8 USC 1325, an immigration offense).) |
Does the WTFPL legally disclaim warranties? Say I make software and release it under the WTFPL. Then, someone uses it and it causes their computer to catch fire. I did not design my program to catch their computer on fire, and in fact it might be too simple to do so. Still, they bring me to court. Does using the WTFPL (or otherwise placing the product in the public domain) offer any protection? I ask this especially because it seems to often be used as a minimal license where it's not legal to release the product in the public domain, effectively placing it there. My biggest reasoning is imagining pencils. The design of a pencil (graphite embedded in wood with rubber on top) is in the public domain.[citation needed] If my arm swings into the pointed tip of a pencil, I don't sue the person (or family of that person) who invented the pencil. If anything, I sue the person who sharpened it, who placed it there, or who manufactured that particular pencil. | Short answer? No, the WTFPL offers no protection. A software license is a contract between the software vendor and the end user defining the terms and conditions under which the end user is permitted to use the software. Often, traditional software licenses contain terms that limit the vendor's liability. For example: "End User accepts the risk that this software will initiate computational conflagrations." It may also limit the end user's right to sue, by requiring binding arbitration, or by requiring them to sue in a particular court in a particular state. Whether and to what extent these clauses are enforceable is moot here, because the WTFPL doesn't contain them. Think of it this way. If you sign a contract with me to buy my house, and then you set fire to my car, you can't wave the house contract at me and say, "This is a legally binding contract, and it doesn't say I can't set fire to your car!" It doen't say that you can, either, and so it's not relevant to the lawsuit I'm going to bring against you for the damage to my car. Contracts are only relevant to a lawsuit if they contain a clause relevant to the subject matter of the lawsuit. The WTFPL contains no clauses in which the end user agrees to do or not to do anything, and therefore cannot be a defense against him or her doing, or not doing, anything at all. | If it's patented then it doesn't matter that you independently came up with it. Most software is not patented, though. Most developers do not even think about patents when writing code. In theory you could spend your time keeping up to date on software patents so that you avoid infringing. But this probably only makes sense for specialists who would want to read the latest patents in their field anyway. All software is protected by literary copyright, though. In this case they will try to prove that you did not independently created it, and did copy it. Whelan v. Jaslow in 1986 ruled that structure, sequence and organization of a computer program were protected by copyright. So you could be liable even if you did not just copy and paste sections of code. But even if you're worried the court would get things wrong and think you copied a program when you never even saw it in the first place, there is really nothing you can do about it. | Distribution on YouTube implicates, at least, US copyright law. Shropshire v. Canning 809 F.Supp.2d 1139 (N.D. Cal. 2011), Subafilms v. MGM 24 F.3d 1088 (9th Cir. 1994) Are you infringing? Is the original work eligible for copyright? "It is undisputed that computer programs— defined in the Copyright Act as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result, can be subject to copyright protection as literary works." 17 USC 102, Oracle Am., Inc. v. Google, Inc., 750 F.3d 1339 (Fed. Cir. 2014) (internal citations omitted). Are you making a copy or displaying the work publicly? (17 USC 106) You concede that you are doing this in the hypothetical, so we can skip this step. Do you have permission to do this? Some work is licensed to allow your proposed use. If you have permission, then this entire answer is moot. Are you taking what amounts to a substantial taking of the original? Presumably, you will not need to show the entire source file to present the naming conventions and techniques that other developers have used. But, what you do show will be an exact reproduction of the original. In the case of computer programs, all US districts use the abstraction-filtration-comparison test. Computer Associates International, Inc. v. Altai, Inc., 982 F.2d 693 (2d Cir. 1992). The abstraction stage of this test is irrelevant in this hypothetical because the reproduction is exact. Filtration excludes any uncopyrightable elements of the original from consideration (due to scènes à faire, merger, lack of originality). The comparison stage compares what remains after the filtration stage, to determine if the new work takes substantially from the original. Fair use defense If your use is found to be infringing based on the above analysis, the affirmative defense of fair use is available. I can't tell you whether a fair use defense would be applicable or successful in your particular case. However, you can search the US Copyright Office's Fair Use Index for many examples successful fair use defenses when a literary work was reproduced in part or whole for educational purposes. There are also other affirmative defenses available (implied license, for example), or defenses that directly attack the elements of copyright infringement. Some confusion exists regarding "idea/expression merger" as a defense after a prima facie case of copyright infringement has been made. This isn't completely correct. Where idea/expression merger enters the analysis differs from circuit to circuit. In the 6th circuit, merger enters in the copyrightability analysis (paragraph 1. above). But, the 2nd and 9th circuits treat merger as part of the infringement analysis (paragraph 4. above) and in the 9th circuit, merger is an affirmative defense. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068 (9th Cir. 2000) The idea/expression merger doctrine is not implicated just because "the idea one that is expressing is 'this is the code they used.'" When you need to cite/show the original work for purposes of "criticism, comment, news reporting, teaching", that is a direct implication of fair use. Using using this justification triggers the full four-factor fair use analysis. (17 USC 107). You don't get to reproduce a work just because you want to say "this is the work they created." | The DMCA prohibits circumvention of technological measures that effectively control access to a copyrighted work. So you can't legally "crack" the software, period -- even if you own a disc containing the software and have a valid license to use it, a license to use the work is not authorization to circumvent access controls. So if the disc is copy-protected, by my understanding of the DMCA, you're kinda screwed. (The company might be willing to provide you a replacement copy, even if only to maintain the illusion that the software is "licensed, not sold". But you can't make one yourself.) Likewise, if you have a copy of the disc but have lost the license key, you're screwed. Even if you could prove beyond any doubt that you are the licensee, there's not any law i'm aware of that would compel the copyright owner to provide you another license key. And courts have held that distribution of license keys without authorization is a violation of the DMCA. So whoever might provide you another key, if they're not the copyright holder, has broken the law. If you managed to copy the disc from a friend (without circumventing any kind of copy protection), and had your own license key, you might be in a better position. Many EULAs allow you to make a backup copy. Even if they didn't, copyright law does, so there's a possible case for fair use. | Probably Not The creator or owner of a piece of software does not in general have any copyright over the output when others run the software, unless that output is itself a derivative work of input supplied by the copyright owner, or forming part of the software. In this case the translation is a derivative work of the 19th century original, but that is assumed to be in the public domain. SAo google has no copyright on the resulting translation. But copyright protection is only available for "original works of authorship". (See 17 USC 102 in the US, and similar laws elsewhere.) A machine-produced translation is not an original work, and it is surely not then work of the author of the overall book. However, the author would still have a copyright on the book as a whole. The legal situation is no different than if the author had simply quoted a 19th century work. One may incorporate public domain works into a later work, and that later work is still protected by copyright, provided that there is enough original contentr to make the work as a whole "an original work of authorship". Others may use the PD [arts, or the original from which they are taken, but not the rest of the work (beyond what fair use would allow in any case). For example, I have made a number of posts here on LAW.SE. In several,of those I quoted sections from one of the numbers of The Federalist. That 19th century work is in the public domain. Anyone else may re-quote the passages I quoted from it. But that gives them no rights to use the rest of my work, except as the CC-BY-SA license or fair use permits. So the author would retain copyright on the book as a whole. But soemoen who merely quotes or uses the translated 19th century article but none of the original parts of the book would not be infringing that copyright. I say probably in the header, because I do not have any actual case-law to cite here. It is possible that some court has rules otherwise on the subject of the copyright on the output of a software tool, but I strongly doubt it. | Please Note: This was written before the title change of this question and may no longer be applicable According to the Harvard website: In Feist Publications, Inc. v. Rural Telephone Service Co. 499 US 340 (1991) the United States Supreme Court held that copyright does not extend to a mere compilation of facts. In this case, it was a telephone directory much the same as the one in ProCD v. Zeidenberg 86 F.3d 1447 (7th Cir. 1996). Furthermore, the Court also ruled that something more than simple "sweat of the brow" labor was required before copyright protection would ensue, with some modicum of authorial originality necessary. Accordingly, it was held in Feist that copyright did not extend to a telephone directory, no matter how laborious a task its compilation was. The decision in ProCD v. Zeidenberg 86 F. 3d 1447 (7th Cir. 1996) is highly significant, therefore, in that it permits copyright or quasi-copyright protection to be extended to non-copyrightable material through the use of contract. One would have to consider each meta tag independently. For example, the "description" tag could by copyrightable since it is written for more than just the 'facts', such as a subtle advert for the site that is more than an objective description. However the 'og:type' would not be copyrightable since it would just be considered a fact. Now, if you are using it on another website and sourcing it properly, you could probably use it under "Fair Use" Uses That Are Generally Fair Uses Subject to some general limitations discussed later in this article, the following types of uses are usually deemed fair uses: Criticism and comment -- for example, quoting or excerpting a work in a review or criticism for purposes of illustration or comment. News reporting -- for example, summarizing an address or article, with brief quotations, in a news report. Research and scholarship -- for example, quoting a short passage in a scholarly, scientific, or technical work for illustration or clarification of the author's observations. Nonprofit educational uses -- for example, photocopying of limited portions of written works by teachers for classroom use. Parody -- that is, a work that ridicules another, usually well-known, work by imitating it in a comic way. A copyright would exist on the image. One would have to know what license currently applies to the image to know for sure, however, the "Fair Use" to copyright would still apply. With Fair Use, the entity type that uses the image is important. There is much more leniency when a non-profit uses copyrighted information than when the information is used in commercial activity. (With, of course, more exceptions.) | united-states You are protected by copyright as a matter of law, even if you don't post a copyright notice, although you have slightly more procedural rights if you do post a copyright notice and there would need to be a filing with the copyright registrar (a division of the Library of Congress) before you brought suit. You can't really get any other intellectual property protections for it except possibly a trademark if you have a distinctive mark or name or logo for the app. | When the question is "Can I be sued for..." there can't ever be a really useful answer, because anyone can be sued for just about anything. The suit may be tossed as pointless early in the process, but it can be filed. That said, could there be a valid ground of suit against a developer for creating a scraper? Possibly. Scraping a site could be against the site's TOS. It could be largely a way of committing copyright infringement. It could be unlawful in some other way. For most sites, scraping is not unlawful. Google does it all the time. If there is no legitimate use for the scraper, or very nearly none, so that any user is likely to be acting maliciously and unlawfully, and if the developer knows this, or any reasonable developer should know this, then the developer could possibly be found liable for the illegitimate actions of those who use the scarper. If there is a legit use for the scraper, or the developer would plausibly think that there is, then such development is not illegal, and a successful suit against the developer is unlikely. |
Company changes its legal name but not that on its staff handbook. Can I ignore the staff handbook? In UK employment law, the staff handbook often forms part of the contract. I work for Company XYZ. This is clearly stated in my contract. The handbook is for Company ABC, which is my employer's old name before I joined. Let's say that I don't like the probation period section of the Company ABC handbook. Am I contractually obligated to follow that old handbook? | Am I contractually obligated to follow that old handbook? Yes. Consider this: your employer gave you a copy of the handbook saying, "here is a copy of the staff handbook." Because of this, you know that the document in question is the staff handbook of your company, regardless of the fact that it bears an old name, and that the policies it expresses are part of the terms of your employment contract. If you were truly concerned that the document in question had no validity as the staff handbook, you perhaps should have expressed that concern by telling the person giving you the document that they appear to have given you the wrong document, because it bears a different name. By not doing this, you accept the terms in the document. On the other hand, if you do do that, you'll just irritate the people who have to produce a rebranded staff handbook so they can give you a copy. | It is not necessary for an agreement to be verbose and written by a lawyer, for it to be binding. There is some danger in having untrained people writing up agreements (they don't know the distinction between "what the law says" versus "what we had in mind"). The agreement is binding, but their interpretation of the contract language does not automatically prevail. The statement "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise" is slightly problematic since it is not true (you can't pay time, you pay money for time spend). With no other statements about time and payment, and just looking at the words, this says that an employee will be paid for 8 hours work, period. Unless they say something different. That could mean "even if you work 20 hours, you only get paid for 8" (illegal under various labor laws), or it could be "even if you only work 2 hours, you get paid for 8" (the most reasonable interpretation). The interpretation "You are limited to 8 hours of work per pay period / contract" is not a reasonable interpretation: that isn't what the clause says. Such a limit could be clearly expressed ("can work up to 8 hours" is a clear way to state the limit), and since they didn't say anything like that, that is not how the courts will read the clause. They can, however, inform you otherwise, e.g. say "your minimum automatic pay is now 2 hours", or "we will only guarantee 2 hours work", and at that point that's what the number is. Since this is (presumably) a take-it or leave it contract which they wrote up and you didn't actually negotiate, any unclarities are legally interpreted in your favor. If you have worked more than 8 hours and they are using the contract language to argue that you won't be paid for the overage, that is not at all likely to hold up in court. Under terms of the contract (interpreted as stating a minimum guarantee of hours), they can inform you that your new minimum is 0 hours. Also, unless there is some kind of tenure clause, they can terminate the contract at will, and maybe they'll hire you under a different contract. What the terms of employment were for you in the past does not matter, what matters is what the current terms are. If you did not pay attention to the fact that they changed the terms of the agreement as of this quarter, that is not their problem. If they decided to change to "actual hours worked" after the current contract was formed, and they informed you of that fact later, then thereafter that is what the agreement is. Until you are notified of that change, the guaranteed minimum is what it says in the contract. In case their argument is "The university sets this policy, the department made a mistake in not informing you", the university has to take responsibility for the errors of their inferiors. | No, you're not required to sign any contracts. But since you're offering a service, you do have to manage some compliance tasks. You are a data controller under the UK GDPR, regardless of whether you have a company. This brings with it various compliance requirements. For example, you MUST post a privacy notice in accordance with Art 13 GDPR that explains how you process user's information. You must sign data processing agreements with your data processors, such as your server providers. And you should reconsider transfers of data to the US, since such transfers are illegal or at least quite questionable in the wake of the 2020 Schrems II ruling. You now have prospective users that are asking you for an Art 28 data processing agreement (DPA). These are likely other organizations that are data controllers of their own. For them to use your browser extension, they either need to find a legal basis that allows them to share their user's/employee's data with you (controller to controller transfer), or they need you to act as their data processor (controller to processor transfer). The third alternative is not to use your plugin at all. Of these, a C2P arrangement is most convenient for these other orgs, but involves a bit of paperwork to set up first. If you want to act as their processor, this doesn't mean you'd have to create a company (though a corporation might be very desirable as a liability shield). Being a processor means that you're contractually bound to only use the personal data as instructed by the controller, and not for your own purposes. This restricts what you can do, and has some special compliance requirements. For example, you cannot engage new subprocessors without your controller's approval. However, processor status can also be convenient for you because you're not responsible for interacting with the controller's data subjects, e.g. you're not responsible for handling their data subject access requests. Note that it's possible to simultaneously be a controller for some users, and a processor for others. E.g. Google Docs is offered directly to users as a B2C product so that Google is a controller, but also as a B2B product as Google Workspace, where Google acts as a data processor. Personally, I'd rather not sign any contracts unless I'm doing it as a business, and adequately compensated for providing this service. GDPR is only one compliance aspect out of many, making it unwise to offer a SaaS product as a hobby. For example, copying other people's web content has copyright implications… A potential alternative for some of the organizations asking you might be to make it possible for them to self-host your backend, so that they are not required to rely on you as a data processor. If you have no plans to commercialize your software, making it Open Source could be a solution. But you're in no way required to do that if you don't want to. | As user6726 said, a contract to sign away statutory tenant rights is virtually never going to be enforceable. Tenancy is a situation that basically always involves contracts; the whole point of statutory rights is to limit the scope of these contracts. Waiving tenancy rights would be sort of like waiving minimum wage. "Consideration" doesn't change anything, because it's assumed when you're talking about contracts. A contract without consideration is void. However, while your example of consideration isn't really what "consideration" means, it is a possible exception to tenancy rights. Certain situations are generally excluded from statutory tenancy rights; for instance, being in the hospital for two months doesn't make you a tenant. RCW 59.18.050 (to go with user6726's Washington theme) also excludes Occupancy by an employee of a landlord whose right to occupy is conditioned upon employment in or about the premises. In other words: You can provide your employee with housing that they only keep as long as they work for you, and in that case they're not a tenant. A live-in housekeeper is a perfect example of this. | Presumably Blue Team are all employees of some company ("the employer"), so the software is a work for hire and copyright is owned by the employer. However in the UK and some other countries (but not in the US) authors also have "moral rights" over their work, including attribution, integrity, and association of an author to the work. This article (by Canadian lawyer Mark H. Evans) discusses the question of moral rights in works for hire: For example, if a former employee wrote a blog to promote a company’s services that was published on the company’s website under that author’s name, the company might find itself being sued for breach of the author’s moral rights if it were to delete the author’s name and replace it with the name of an employee who wasn’t the author but is still with the company. On the face of it John would be in a similar position to the blog author in the quote. So for the employer (including Jane, as an employee) to remove John's name would be a violation of his moral rights to attribution. In this case the source code is public. However in most commercial settings it would be secret: The secrecy of the code would make it harder for John to find out his name had been removed. However lets suppose that a friend still in Blue Team were to tell him. I'm not sure about discovery rules in various countries, but presumably a serious lawsuit could get confirmation. The secrecy of the source code also means that fewer people would see John's name there than if it were generally published. This would lessen the damages, but not eliminate them. John would probably be able to get an injunction ordering that his name be restored. Many programs are published with a credit list, and John would certainly have a moral right to appear on such a list with the same prominence as other team members. From later in the same article: While moral rights are personal and can’t be assigned, they can be waived. This is an important solution to navigating moral rights in works generated by employees and contractors. And because any assignment of copyright is not an automatic waiver of moral rights, the waiver must be express. So it depends on the contract between John and the employer. If John has explicitly waived his right to attribution then the employer is in the clear. | Your boss is totally wrong. Legally, there is no such thing as a "probation period" in the UK. You have the right to your holiday payment, according to the days that you worked. What can happen: The legal minimum is I think 28 days per year including bank holidays, but most companies give 23 or 24 days PLUS eight days bank holiday. Your contract may say that the first three months are called probation period, and during that time you only get the legal minimum, and after that the much more common higher amount. That would be legal. But even so, you would be entitled to seven days, minus any bank holidays where you didn't work. | No, section titles do not have to end in a period. But a common convention in the U.S. is that when section titles are used, they appear in bold and are followed by an unbolded period. For example: Development Credit. The Client shall acknowledge the Developer as the Website developer on the Website page entitled ... The convention promotes clarity and helps courts that later have to interpret the document to better understand the parties' intent. For a written contract, an alternative would be to place the title on its own line with the text below. Some contracts omit section titles entirely. Others add them but with an additional section explaining that the titles are not to be used to interpret section text groupings. Online resources like Law Insider and Onecle have large databases of sample contracts that should help with both formatting and content. If you'd like to learn contract drafting and revising somewhat more formally, then a good text reference is Tina L. Stark, Drafting Contracts: How and Why Lawyers Do What They Do (Wolters Kluwer 2d ed 2014). (The above snippet is from Stark.) united-states | A company generally cannot compel an employee to agree to a non-compete, but they have a wide variety of alternatives for inducing employees to do so. Most obviously, they may threaten to fire employees who refuse, whether immediately or at the end of their current term, as another answer observes. Indeed, if Big Company makes an NC a condition of employment then they are likely to insist on the same for employees they obtain from Original Employer. Firing employees for refusing to sign does, of course, put them in the job market as potential competitors, but the company may well find it acceptable to do that on their own terms. In particular, Big Company can ensure that those who won't sign go out the door with minimal knowledge of Big Company's clients, trade secrets, etc. other than those obtained from Original Employer. And that leads into other forms of inducement. Big Company can do some or all of the following things, depending on the particular employment situation: offer bonus compensation for signing promote those who sign and / or demote / reassign those who don't change job duties for those who refuse to sign do all manner of nastier things to be unfriendly to employees who refuse to sign Some of those fit directly into Big Company's perceived interest in avoiding employees using Big Company internal information to jump ship and compete with them, and others could fit into Big Company policy about which jobs require an NC. Some are just pressure tactics, but that does not necessarily make them unlawful (nor are all variations on the others necessarily lawful). |
What can I do if police did not record video in car dashcam for a traffic ticket in NJ, USA? Are police required to record in car dashcam video for traffic tickets in NJ, USA? A town in NJ said not all of their police cars record video. Is there any way to find out if they aren’t telling the truth? Can I contact the police chief, mayor, or municipal judge? How can I defend myself in court trial if the judge always believes highly credible police officers over defendants if I don’t have video? Edit: C.40A:14-118.1 Municipal police vehicles to be equipped with mobile video recording system. 1. Every new or used municipal police vehicle purchased, leased, or otherwise acquired on or after the effective date of P.L.2014, c.54 (C.40A:14-118.1 et al.) which is primarily used for traffic stops shall be equipped with a mobile video recording system. https://www.judiciary.state.nj.us/courts/assets/municipal/legis/pl2014_c54.pdf | A related post is here. Are police required to record in car dashcam video for traffic tickets in NJ, USA? Probably not. Is there any way to find out if they aren’t telling the truth? Ask and hope you are not lied to. Can I contact the police chief, mayor, or municipal judge? You can contact the police chief or mayor if you can get through to them. They are not required to answer you unless you make a formal discovery request or public records request. You cannot make ex parte contact with a judge when the other side's lawyer (in this case, the city's lawyer) is not present. How can I defend myself in court trial if the judge always believes highly credible police officers over defendants if I don’t have video? You can tell your side of the story under oath with any details that makes your story believable. You are correct that the judge will usually believe the police officer and not you. So, usually you will lose. This is one reason that most people try to plea bargain their traffic tickets, rather than going to trial. Due process rights give you an opportunity to tell your side of the story when contesting a ticket, but it doesn't give you a right to win (even if you are actually in the right) if the judge or other trier of fact doesn't believe what you have to say. It does not appear that you have a right to a jury trial in a traffic case in New Jersey, although this depends to some extent on the kind of violation being charged, so you are probably stuck with the beliefs of the municipal court judge about who is the more credible witness. | If you are accurately representing the facts, this is a clear case of defamation. Your attorney will point out that you could sue him / them, since he apparently accused you of a crime (the accusation to the police, it's the later public accusation that counts). You can subpoena the video, in connection with a lawsuit. There is no way to force them to turn it over without a court proceeding. | The standard for stopping someone and requesting their ID under the limitations in the U.S. Constitution is "reasonable suspicion." For example, if the officer has a reasonable suspicion that you are taking pictures for the purpose of a secure location for purposes of espionage, or to case the location for a future crime, reasonable suspicion is probably present and you can probably legitimately be asked for you ID. A creative and intelligent officer can almost always conjure up some reasonable suspicion in the situation that you identify to question you and demand ID. For example, she could state that no one else has taken a picture of that location in weeks and that is is very unusual behavior, that your demeanor or the time of day you were present doesn't seem to be that of someone taking a picture for artistic or journalistic purposes, that you seemed nervous, that a previous criminal engaged in similar behavior before committing a crime fourteen years ago, that a confidential informant (e.g. a nosy neighbor) advised him that there was someone engaged in suspicious behavior at that location, that she read in a police anti-terrorism bulletin that terrorist favor that model of camera, etc. The nature of the suspicion doesn't have to be shared with you until you challenge it in court. A dumb cop won't come up with any colorable reason, demands ID for a stated reason ("before you have to do whatever I say") that is inaccurate, admits he has no reason to stop you in a conversation captured by a body camera, and doesn't come up with pretext after the fact before going to the court. In that case, the stop is a de minimis violation of your civil rights justifying a nominal damages award of $1 to you and your attorneys' fees and costs and maybe a consent decree ordering the agency not to do that in the future. | In the U.S. this is a notoriously perilous area of the law, particularly because the laws regarding recording vary so much between the states. A good source for this question is the RCFP. To give you an example: In Pennsylvania it is a felony to record "oral communication" in any circumstance in which the speaker would be justified in expecting it to not be recorded. Legally, as soon as you turn on an audio recorder in PA, you had better make sure nobody unaware that you're recording wanders within range of your microphone! | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | Of course a city can enforce their own laws. The possible laws that LA (or any other city) could enforce against the video producers and vbloggers are many: zoning laws (enforcing laws against operating a commercial film set or business in a residentially zoned area); the requirement for an open burning permit, either all year or during times of fire danger; excessive noise ordinances, either 24hr or in a time span from late evening until morning; ordinances regarding excessive traffic and street parking; ID age checks for drinking, if police can get access to the property through warrant or other means; and investigations of criminal behavior shown in the videos. "Basically, after today, if we film in this house we could face up to six months in prison because we need permits," https://www.popbuzz.com/internet/social-media/jake-paul-banned-from-vlogging-in-house/ He could be talking about filming permits, traffic permits, burn permits, occupancy permits, etc. Cities and municipalities can quickly enact new ordinances that criminalize behavior that impacts the neighborhood as a whole after taking into account complaints from neighbors and advice from police regarding activities of the problem residents. Another aspect of the story is that it appears that Jake Paul is a renter. That means the city and neighbors can put pressure on the landlord to encourage Paul to obey the law; failing that, the landlord could possibly evict Paul in a very short amount of time due to possible damage and other clauses in the lease regarding illegal activity, if the lease stipulates anything like that. | If you were moving "with the flow of traffic" but over the limit, you were still breaking the law, and the cop can choose which car or cars to stop on any basis or none (except ones forbidden, such as racial in the US). This is almost surely not a valid defense, not in any jurisdiction that I know of at least. If you can show that to slow to the speed limit would have actually been unsafe, you might have a defense, but that is going to be hard to get a court to accept. | can really anyone in Germany call the police on others without proof of anything? Anyone anywhere can call the police without proof of anything as long as they have a phone. The question is, what will the police do about it. Police in Germany are more professional and less corrupt than in many countries in the world (e.g. they are much less corrupt than police in much of the United States or police in Southern Italy or Mexico, or in much of the "third-world"). Most German police are unlikely to exercise their power unless they are genuinely deceived into thinking that you committed an actual crime. But, German cops are human too. Some German cops are bad cops and even good cops aren't perfect truth detectors or bias free. and if so what are my rights? There has to be some evidence to arrest you or prosecute you, but testimony from people who claim to be eye witnesses is a form of evidence and proof. People are routinely convicted of crimes (everywhere in the world) based solely upon the testimony of other people with no additional proof. This is usually a good rule. As a society we don't want the criminal justice system to let people who commit crimes that are witnessed by lots of truthful witnesses and testified to, to go free just because there is no non-testimonial evidence. But because people lie (or are simply mistaken about the truth) sometimes, it isn't a perfect way of determining who is guilty and who is innocent. You also have the right to lodge a complaint of criminal defamation with the police in Germany and in Germany hundreds of thousands of such cases are prosecuted by police every year. Making false accusations against you (or even just insulting you in an extremely offense manner) as they did is a minor crime in Germany. and the person I mentioned had 2 of his employees with him but I am sure and I know for a fact they are on his side and I had no witnesses with me so how can I prove I am innocent? if they agreed on making up a story against me? The possibility that people will be wrongfully arrested and wrongfully convicted of crimes because people lie and authorities believe the people who are lying is a constant risk. The best you can do is to tell your story consistently and honestly and hope that you are believed. But it is impossible to eliminate the risk that people will lie and be believed and that you will suffer the consequences, even if you are doing everything right. In the long run, you may want to avoid people who you think would lie and make false accusations around you, and to have the presence of either friendly witnesses and/or audio/visual recording at times when you are in their presence. You may also, as a long run strategy try to figure out if there was anything you could have done to prevent them from being out to get you so badly that they would make false accusations against you. While I don't want to blame the victim, and often enough, especially for example, if you are a foreigner or otherwise different in a homogeneous community some people are doing to hate you for no reason, sometimes their real motivation may be a failure to follow social norms that are not actually illegal, or a misunderstand that could be cleared up. |
Section 3A of the United Kingdom's Computer Misuse Act 1990 Section 3A of the United Kingdom's computer misuse act states you are not allowed to produce, obtain or supply articles which can be used for computer misuse. How do UK information security bloggers and conference speakers go about this, as technically, even with non-malicious intent, there is a violation of the CMA? | The legislation in question is section 3A of the Computer Misuse Act 1990 (this section was added to the original text of the CMA by section 37 of the Police and Justice Act 2006): 3A Making, supplying or obtaining articles for use in offence under section 1 or 3 (1) A person is guilty of an offence if he makes, adapts, supplies or offers to supply any article intending it to be used to commit, or to assist in the commission of, an offence under section 1 or 3. (2) A person is guilty of an offence if he supplies or offers to supply any article believing that it is likely to be used to commit, or to assist in the commission of, an offence under section 1 or 3. (3) A person is guilty of an offence if he obtains any article with a view to its being supplied for use to commit, or to assist in the commission of, an offence under section 1 or 3. (4) In this section “article” includes any program or data held in electronic form. (Sections 1 and 3 refer to unauthorised access and impairing the operation of computer) In England and Wales, prosecutions are brought by the Crown Prosecution Service, there are guidelines produced by the CPS for section 3A: Prosecutors should be aware that there is a legitimate industry concerned with the security of computer systems that generates 'articles' (this includes any program or data held in electronic form) to test and/or audit hardware and software. Some articles will therefore have a dual use and prosecutors need to ascertain that the suspect has a criminal intent. ... Prosecutors dealing with dual use articles should consider the following factors in deciding whether to prosecute: Does the institution, company or other body have in place robust and up to date contracts, terms and conditions or acceptable use polices? Are students, customers and others made aware of the CMA and what is lawful and unlawful? Do students, customers or others have to sign a declaration that they do not intend to contravene the CMA? For Section 3A (2): In determining the likelihood of an article being used (or misused) to commit a criminal offence, prosecutors should consider the following: Has the article been developed primarily, deliberately and for the sole purpose of committing a CMA offence (i.e. unauthorised access to computer material)? Is the article available on a wide scale commercial basis and sold through legitimate channels? Is the article widely used for legitimate purposes? Does it have a substantial installation base? What was the context in which the article was used to commit the offence compared with its original intended purpose? Original answer from Sec.SE by Tom77 | There is nothing preventing the OP's "subject" from making a Subject Access Request in these circumstances From the British Transport Police's Privacy Notice page, under the heading "How we use personal data": This privacy notice explains: ... the rights individuals have when we process their personal data. ... Right of Access: You can request access to the personal data we hold about you free of charge. You can request access to the personal data we hold about you using the contact details in this privacy notice. ... We collect personal data from a variety of sources, including: ... sound and visual images (e.g. from body worn cameras, CCTV, or facial recognition software); ... our own CCTV systems and body worn cameras. There's more detail in the link, which I have not replicated here to save space and avoid unnecessary "noise", but the above should cover the relevant points raised by the OP | This is not (necessarily) copyright violation It's possible that Quora's usage falls within Fair Use. At the very least, the argument could be made. If it does, then there is nothing that Stack Exchange or the OP can do. Stack Exchange can choose not to protect their copyright Unlike trademarks, which lapse if not protected, copyright endures. Therefore Stack Exchange can pick and choose the copyright fights they want to get involved in and those they don't. If you have brought it to the attention of the copyright owner (or, in this case, licensee) and the copyright owner chooses not to act then you have done all you can and significantly more than you have to do. The OP has copyright I note that one of the examples is your question. As the copyright holder, you are free to issue a DCMA takedown notice on Quora if you feel your copyright has been violated. | Such use might well be illegal, and subject the user to tort liability, or possibly even criminal liability. Parties For this discussion let us call the person or company that developed and wants to protect the information D, the person or company that downloaded and wants to use the information U, and the person who placed the information on the server P. Trade Secret One possible source of liability is if D considers the information to be a trade-secret. The law on trade secrets varies to some extent in different countries, although there is a general similarity. Since no jurisdiction is specified in the question, I am going to look at the united-states law. Definition The LII page on "Trade Secrets defines a trade secret under the US Uniform Trade Secrets Act ("UTSA") as: "information, including a formula, pattern, compilation, program, device, method, technique, or process that: Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. A similar definition is given by the USPTO page on "trade secret policy". Prior to the USTA, and still in those US states that have not adopted the USTA, trade secrets were/are protected under the common law. The LII page lists the common law factors, as given by the Restatement of Torts (1939) § 757, comment b: The extent to which the information is known outside the claimant's business The extent to which it is known by employees and others involved in the business The extent of measures taken by the claimant to guard the secrecy of the information The value of the information to the business and its competitors The amount of effort or money expended by the business in developing the information The ease or difficulty with which the information could be properly acquired or duplicated by others These factors may apply in other common-law countries. In either case, one must consider how the would-be user came to acquire the information, and thus how it came to be on the server from which it was downloaded. One must also consider whether it was the subject of "reasonable efforts" to protect its secrecy, under the circumstances. Circumstances If P was violating an obligation of confidentiality, such as an NDA or a duty as part of an employment relationship, then the placement of the info on the server was improper. In such a case its acquisition by another, such as U might constitute misappropriation. The same would be true if a person under an obligation of confidentiality arranged for the server to be indexed by a search engine, when it should not have been. The case for misappropriation would be stronger if U knew that the information was considered confidential by D, and also if P had informed U about where to find the info, or what search terms would uncover it. If P was acting with the permission of D, and P or someone else at D simply failed to realize that the server was, or might become, indexed, then the question is whether the steps taken by D to keep the info secret were reasonable. If this a case of "inadvertent disclosure resulting from the trade secret holder's failure to take reasonable protective measures" then there is no misappropriation, and the actions of U are lawful. That will depend of a judgement of whether D's actions were reasonable in light of the value of the info and the overall circumstances. If the placement of the info on the server is considered to constitute "general publication" of the info, so that it is no longer secret in any meaningful sense, then D may have a claim against P, but not against U unless U acted in collaboration with P. Copyright Law The documents downloaded from the4 server are almost surely protected by copyright. Directly incorporating them into an open source project without permission from the copyright holder would be copyright infringement, and would subject U to a suit for infringement. However, copyright does not protect ideas, methods, or facts. If U learns a method or idea from the document, and uses that knowledge without directly copying or closely paraphrasing the document, there is no copyright infringement and no claim under copyright law. Patent Law The question does not mention any patents. It is possible that D has patented the method describe in the downloaded documents. If so, and if the patent is valid, any use by U would be patent infringement, and the question of how U learned the info becomes irrelevant. However, most software developments such as data structures are not patented, so this is a somewhat unlikely, albeit possible, case. Notre that if the information is covered by a patent is is by definition not secret, as all patents must be openly disclosed. But they may not be widely publicized, and if U does not make a patent search, U may not realize that the document includes patented technology. This possibility is largely incompatible with the trade secret possibility, althogh it is possible to use trade secrets in connection with patented tech. Conclusion In short whether U may lawfully use then info, or is subject to a tort claim by D, or even criminal action, depend on the details of the overall facts. U would do well to take legal advice on the matter before proceeding to use the info. | Laws against such actions are not stated in terms of popular and fluid concepts like "computer virus", they are stated in terms of clear concepts like "unauthorized access". There are federal and state laws against this. This web site lists and links to all of the state laws on the matter. There is also a federal law: a detailed legal analysis by DOJ is given here. There are some limits to federal jurisdiction, for example "protected computers" include "computers used in or affecting interstate or foreign commerce or communication". The term "affecting interstate or foreign commerce or communication" is widely used in federal law, and can be used to prohibit growing feed for your own animals. Anything that you "send" clearly affects interstate commerce (the internet is internationally connected). 18 USC 1030(a) says Whoever ... (2) intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains...(C) information from any protected computer Essentially, a computer connected to the outside world is protected. The key here is "without authorization". If you authorize MS to report back stuff about your computer, that is not unauthorized. It may not be possible to use their product without giving such authorization, in which case you can use a different product that doesn't require that you grant authorization. There is also the possibility that some software producer has technically violates the law because they think that it's okay for them to access the computer as long as they do no harm. Typically, people are not aware that they have granted software publishers access to their computer. The concept of "harm" is pretty much irrelevant to computer-crime criminal law. It would be relevant, though, if a plaintiff were to sue someone for sniffing around their computer: then you'd have to show that you were damaged. | You can’t “mislead or deceive” in “trade or commerce” in Australia It is flat out against the law to mislead or deceive - you can’t lie, you can’t conceal salient facts, you can’t tell half truths, you can’t even tell the truth, the whole truth and nothing but the truth if that could be misleading. The fines are huge (for example), plus the contracts are unenforceable, plus the reputational damage is extreme. The types of practice that you describe would result in orders to return the premiums, plus fines plus probably revocation of the licence to be an insurer in Australia if they were systemic. This is particularly true of insurance companies - the legislation that applies to them is enumerated here. | Source code is protected by copyright, even if it is designed for an unethical or illegal purpose. Making a copy without permission is copyright infringement, as is distributing a copy without permission, unless an exception to copyright applies. In the US the primary exception is fair use. Whether a use constitutes a fair use or not depends on the detailed facts, including the nature and purpose of the use, and the plausible effect on the market for the protected work. The question does not contain enough information for even a rough fair use analysis. It is generally not unlawful to create malware, only to use it to access a computer or network without permission, or to do other unlawful acts. Thus the copyright holder could sue without implicating him- or herself in a crime. However, damages would probably depend largely on the commercial value of the program, and if the only plausible use was criminal, the legitimate value might be quite low. Possessing an unauthorized copy of a work is not a crime, nor is it infringement. The maker and distributor of an unauthorized copy commits infringement, but the recipient does not. Whether unauthorized access and downloading is a crime under the CFAA depends on the factual details. Many things that might technically be crimes under the CFAA are not prosecuted. That is a matter for the relevant prosecutor to determine. | No, it is not illegal in UK to use proxies. No, it is not like the tor concept. No, the ISP does not slow you down (they mostly throttle detectable p2p connections), but if you use public proxies, many of them will be unacceptably slow. Note: for things like facebook, a proxy is utterly useless. You already donated your private data to them, there's nothing to hide. |
Can a psychotherapist offer lower rates to African-American clients as reparations? I have a friend who has started offering lower rates to African-Americans, as her contribution to reparations. She is a psychotherapist in private practice. My loose understanding is that civil rights protections apply to "public accommodations." Is this kind of discrimination legal or illegal? Some light research seems to indicate that as a health care provider, her services would be considered "public accommodations" under the Americans with Disabilities Act, but would not be included as "public accommodations" under the Civil Rights Act and therefore, her "discriminatory" pricing policy would be allowable. | This is largely a matter of state law. In California, for example, this would be plainly unlawful (my emphasis): All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Unruh Civil Rights Act, California Civil Code section 51) Other states may define "business" more narrowly, or exclude professional services. Also, there is the question of professional ethics. Discriminating against a racial group will likely run afoul of the rules of the licensing board, the AMA, the APA, and other organizations. Finally, remind your friend that every racist has what they regard as good reasons for their racism, and your friend is not special in that regard. | The only applicable law is the local trespassing law. If he wants, the proprietor can demand that the patron leave, and if the patron does not leave, he can be arrested for trespassing. It uncontroversial that the First Amendment protects racist declarations. | You asked about other jurisdictions. As you'll probably be aware (from cases like EU vs Microsoft and EU vs Google) European countries and culture tend to have much stronger protection laws for consumer and employee rights than the US does. In the UK you could make a strong case, although such cases are not often undertaken. The current legislation is Part 2 of the Consumer Rights Act 2015, but the unfair contract terms clause goes back to at least the Unfair Terms in Consumer Contracts Regulations 1999. Basically the law protects a person in a situation where disparity of size and bargaining power have led to unfair terms in a contract (typically a large company offering "take it or leave it" standard terms) - and specifically if they create a significant disparity in the parties rights and obligations. In such a situation the company which drafted the terms alleged to be unfair must show they are reasonable. A list of common terms likely to be seen as unfair is provided. (Employment terms are covered by other laws but also aim to prevent abuses due to inequality of contracting power) A company which sold a product like Windows 7/8/8.1 and then later said "we are changing our terms of support and forcing you to upgrade" (especially to a different product the user may not want, or a product that is maintained in a different way),would almost certainly be at substantial risk of falling foul of this. It wouldn't matter if it was done by not providing the support/patches as originally implied (by custom or normal expectation) or as agreed in an explicit statement of support life cycle, or by saying "we have the right under the contract to do this", or by forcing what is essentially a change of product to get the updates. It also wouldnt matter how big they are, nor whether or not the user had already agreed "because I felt I had no choice". The law is there specifically to protect against abuses like this, so it is drafted to catch companies who try to find "wriggle room". | I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios. As a starting point, one needs to bear in mind that: a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing. Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms & conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)). The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues: Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about & accepted that condition. Does the house provide alternatives for lawful & informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause". Is the house owner realistically able to prove that use of the walkway by lawful & informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))? Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit & loans? These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided. Lastly, as a side note, the presumption that a person reading the poster and walking in the intended area does not thereby receive consideration is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed. | In California, psychologists are regulated under Ch 6.6 within Division 2 (Healing Arts) of the Business and Professions Code. §2902 identifies the essential restriction on the business practice, stating that "A person represents himself or herself to be a psychologist when the person holds himself or herself out to the public by any title or description of services..." using various forms of the word 'psychologist', as well as "when the person holds himself or herself out to be trained, experienced, or an expert in the field of psychology". In order to say that you are a psychologist, you have to hold a professional psychologists's license. Likewise to hold yourself out as a nurse, you need a nurse's license. A consequence of being a licensed psychologist is that under the Confidentiality of Medical Information Act, you may assess a patient's mental state, and you must keep that information confidential. A life coach cannot make a diagnosis, and cannot prescribe cures for mental conditions. §2908 in particular allows other people to do some of what psychologists do: Nothing in this chapter shall be construed to prevent qualified members of other recognized professional groups licensed to practice in the State of California, such as, but not limited to, physicians, clinical social workers, educational psychologists, marriage and family therapists, licensed professional clinical counselors, optometrists, psychiatric technicians, or registered nurses, or attorneys admitted to the State Bar of California, or persons utilizing hypnotic techniques by referral from persons licensed to practice medicine, dentistry, or psychology, or persons utilizing hypnotic techniques which offer avocational or vocational self-improvement and do not offer therapy for emotional or mental disorders, or duly ordained members of the recognized clergy, or duly ordained religious practitioners from doing work of a psychological nature consistent with the laws governing their respective professions, provided they do not hold themselves out to the public by any title or description of services incorporating the words “psychological,” “psychologist,” “psychology,” “psychometrist,” “psychometrics,” or “psychometry,” or that they do not state or imply that they are licensed to practice psychology; except that persons licensed under Chapter 13.5 (commencing with Section 4989.10) of Division 2 may hold themselves out to the public as licensed educational psychologists. Analogously, we can talk about the law here without running afoul of UPL laws, because "talking about the law" is not the same as "practicing law". It is a fairly formalistic distinction, but I or a life coach can talk about what would be good for your soul, as long as I don't claim to be a psychologist dispensing professional advice. | Is it lawful to offer smaller portions only to children below a certain age..? Yes Part 3 of the Equality Act 2010 covers "Services and Public Functions" and at section 29 states: Provision of services, etc. (1)A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service. This is the only definition of "service-provider" in the Act, but the Equality and Human Rights Commission confirms a restaurant falls with the scope of Part 3: Equality law applies to any business that provides goods, facilities or services to members of the public. This includes a wide range of different businesses and services. These include: [...] restaurants [...] However all that is moot (but posted here for context) as Part 3 of the Act opens with caveats at section 28 which establishes that: (1)This Part does not apply to the protected characteristic of— (a)age, so far as relating to persons who have not attained the age of 18; [...] | If the requirement is imposed by an employer, then the basis for an exemption, if any, would be whatever the employer choose to allow, unless some applicable law required some particular exemption. Such mandates are not common. Indeed I do not recall hearing of any such absolute mandates. But an employer could choose to impose one, and I have heard (and read) discussions of hospitals, for example, requiring COVID-19 vaccinations to be taken by employees when available. If an employer mandates a vaccination, it is up to the employer to decide when, and if, an exemption is warranted. It is up to the employee to decide whether to comply by accepting the vaccination or refuse at the risk of being fired. I do not know of any law which would specifically require an employer to grant exemptions in particular circumstances. A law might exist, or be passed, requiring such exemptions. If the employee had a particular medical condition which makes a vaccination si9gnificantly more risky for that employee than for an average person, and if that condition was considered to be a disability (not all or even most medical conditions are so considered) then the Americans with Disabilities Act (ADA) would require the employer to offer a "reasonable accommodation" to the employee, if one is available. Exactly what accommodation is "reasonable" is a fact-based determination, and would depend on the reason for the mandate, the cost and burden of the accommodation on the employer, and the degree if risk to the employee with and without the accommodation. In some cases no accommodation is found to be "reasonable", and in such cases the ADA does not mandate any accommodation at all. The ADA generally specifies whet must be done when an employee has \ a disability, but dopes not specify exactly how a disability must be proved. A medical certificate is common, but njot invariable, iof an employer questions the existence o a disability. The ADA would not require an exemption for a "Religious/Philosophical" objection. Soem state laws protect religious scruples in various particular employment situations. In some but not all states objections on such grounds for vaccinations otherwise required for school attendance are honored. The exact grounds accepted vary from state to state. A specific state would need to be listed for a more specific answer to be given, and I am not aware of any state that has such a requirement for exemption from a private employer's vaccine mandate. Addition: It seems from comments that some employers, such as hospitals and the military, already require vaccinations for some diseases. This seems reasonable to me, and does not change my answer otehrwise. | It seems like callous behavior which leads to a foreseeable death deserves a bigger punishment than just firing of the administrator. The starting point of the analysis is that no one is legally responsible, civilly or criminally, for a suicide unless that person intended that the person who committed suicide do so, which is almost certainly not true in this case. As a matter of law, a suicide caused by merely callous behavior not intended to cause someone to commit suicide is not foreseeable. And if the only actions brought are civil, then the University would be the defendant and the actual individuals who were involved would not themselves even face any trial. This is not accurate. It would be routine to bring suit against anyone personal involved (probably both the administrator and the gay student who allegedly colluded), as well as the University, and indeed, the likelihood of a recovery against one or both of the individuals would be greater than the chance of recovery against the University. To recover against the University it would be necessary to show that the Title IX violation occurred pursuant to an officially approved policy or practice of the University, but this case seems to have at its heart, a failure to an administrator to follow a policy of the University. It might be possible to sue the University or someone involved in the process for a violation of his civil rights, but generally speaking, his death would not constitute recoverable damages in a such a suit. Also, generally speaking, a Title IX claim requires that any party held liable to have had an intent to violate someone's civil rights, rather than that the person was merely mere inept or negligent in implementation or non-implementation of a bureaucratic policy or dispute resolution procedure. This is alleged by the Plaintiff, probably in part because it has to be to prevent the case from being dismissed on the pleadings, but is quite implausible that this really happened that way, and this is difficult to prove unless there is some really hard evidence backing up the alleged collusion. Generally speaking, the fact that a hearing board comes up with a wrong conclusion after allegedly not following proper procedure, is not actionable for damages and certainly wouldn't constitute fraud. UPDATED RESPONSE TO EDIT 2: there maybe other victims, in similar situations, who are not protected by the criminal justice system if nothing of what is alleged to have transpired is deemed illegal It is a common fallacy that if something is not a crime, that it is not illegal or that there are no remedies. A civil lawsuit is a common and often appropriate remedy for all manner of wrongs, and the compensatory and injunctive remedies for civil wrongs such as a breach of contract and torts such as the intentional infliction of emotional distress are often significant. This said, as a government entity, the University of Texas and its employees are probably immune to many tort causes of action that would be available against a private party engaged in the same conduct. In this case, probably the only viable causes of action against the University of Texas itself, as opposed to the responsible individuals in a particular case, would be for breach of contract for not actually carrying out its policies as impliedly promised, and for injunctive relief under Title IX insisting on new policies that would prevent misconduct in disciplinary proceedings. Generally speaking, a criminal law remedy is less victim oriented than a civil remedy and is outside the control of the victim, which can be traumatic for a victim who would prefer not to be involuntarily dragged into the criminal justice process. The notion that settlement is not possible in the criminal justice system is likewise mostly incorrect. There is a reason why we don't handle rapes (for example) in civil courts. Criminal justice system exists to make sure that, at least in theory, those who commit heinous acts cannot buy their way out of consequences of those actions. In fact, one can bring a cause of action for a rape in a civil court. I've done it. And, the lower threshold of proof, the lack of a right to remain silent without legal consequences under the 5th Amendment, the greater focus on compensation for the victim, and the greater level of control of the victim are all good reasons to pursue this route. Many cases of rape by people able to afford to pay compensation are also cases of actionable sexual harassment. In general, criminal law is the solution that is usually resorted to not so much because the acts committed are heinous, but because the typical person who violates a law that is criminally prosecuted is judgment proof and unable to pay compensation that is even remotely proportionate to the harm done, so a civil remedy does not discourage that behavior. Your typical rapist who is prosecuted in the criminal justice system isn't capable of paying meaningful compensation to a victim, although there are always exceptions. Preventing people from buying their way out of their wrongdoing is almost never advanced by criminal justice scholars as a reason for a criminal justice remedy. And, when I have clients who have been harmed, for example, by fraud, most would far prefer to receive compensation from the wrongdoer, than to see the perpetrator punished without receiving any meaningful compensation for their own injuries, which is the usual result in the criminal justice process. Most people think of the criminal justice system as more of a last resort when all other options fail than as a good first choice which it rarely is even when it is the least bad option. So back to the main question, what, if any, criminal charges can be leveled against the administrator and the false accuser if the alleged facts of the case can be confirmed to be true? In the fact pattern presented, where a public official at the University of Texas conspires with a student with whom the official has a pre-existing personal relationship to produce an intentionally inaccurate result in a University disciplinary hearing harming a defendant in that process, there are several university statutes that might form a basis for criminal action against either the public administrator or the conspiring student on the offense identified or conspiracy to commit the offense identified. In no case are any criminal charges against the University of Texas a plausible option in this fact pattern. Each of the offenses is a misdemeanor under Texas law. The best fit is "improper influence". Texas Penal Code § 36.04. This involves reaching an outcome in an adjudication for a reason other than one legally allowed due to someone's application of influence other than a bribe or kickback. The section states: (a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of considerations other than those authorized by law. (b) For purposes of this section, “adjudicatory proceeding” means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined. (c) An offense under this section is a Class A misdemeanor. Two other possibilities are "abuse of official capacity", Texas Penal Code §39.02, or "official oppression" Texas Penal Code § 39.03. These sections and a related one, read as follows in the pertinent or potentially pertinent parts: Sec. 39.01. DEFINITIONS. In this chapter: (1) "Law relating to a public servant's office or employment" means a law that specifically applies to a person acting in the capacity of a public servant and that directly or indirectly: (A) imposes a duty on the public servant; or (B) governs the conduct of the public servant. . . . Sec. 39.02. ABUSE OF OFFICIAL CAPACITY. (a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly: (1) violates a law relating to the public servant's office or employment . . . (b) An offense under Subsection (a)(1) is a Class A misdemeanor. . . . 39.03. OFFICIAL OPPRESSION. (a) A public servant acting under color of his office or employment commits an offense if he: . . . (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment. (b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity. (c) In this section, "sexual harassment" means unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature, submission to which is made a term or condition of a person's exercise or enjoyment of any right, privilege, power, or immunity, either explicitly or implicitly. (d) An offense under this section is a Class A misdemeanor . . . Also, in all three of these cases, the fact that someone committed suicide afterwards is basically irrelevant legally. |
Can a child sell things in a public place without a permit? Allison Ettel, dubbed "Permit Patty," was under fire after calling the police on an 8-year-old selling water bottles without a permit. People of the Internet got really pissed at her. Legally speaking, was she right? A quick Google search leads me to believe that minors do actually need a permit to sell stuff. However, the kid and her mother didn't get into any trouble. Was it a situation where calling the police was the proper legal action? Was Allison Ettel legally right even though everyone hates her? | It's called police and prosecutorial discretion to discern when to arrest and prosecute; and that situation in particular is also the result of a decision of the jury of the court of public opinion. Permits are required to sell on the street in Oakland. But not everyone who sells has a permit, and not everyone who is confronted about not having a permit is arrested and prosecuted. There are simply too many potential cases to prosecute. And, the police officer has the discretion to ticket or not. When you get pulled over while driving or riding a bike, you don't always get a ticket, since the officer has the option of discretion. When the officer responded and found an eight year-old selling water, he obviously was aware of the fact that it was a violation. But he was also aware of the court of public opinion. What is it going to look like if he arrests an eight year old and their parent? Allison Ettel was right, in a purely legal sense, to make the report. And technically, the child (and adult) needed a permit. And could have been ticketed and prosecuted. But it was Ettel was tried and convicted in the court of public opinion, and she lost her case. Happens a lot. | The law doesn’t “defines a minor as a legal person below (some age)” It defines it as a natural person below (some age). | Etiquette is not "above" the law in the sense that an etiquette rule excuses a violation of law. However, at least in the US, the police are not required to investigate every alleged violation of law, nor is a prosecutor required to proceed against every lawbreaker, and the decision to proceed may be influenced by a perceived etiquette violation. It should also be mentioned that while a third person has no right to prevent you form talking to anyone who is willing to talk to you (unless the 3rd person is the parent of guardian of an underage person you wish to address), it is not in any way illegal to instruct you not to do so, even if the instructions are incorrect as a matter of law. Assaulting you is, of course, a different matter. | In colorado, it appears that the kidnapping statutes do not apply if the act is not "knowing" or if the perpetrator lacks intent. § 18-3-301 Any person who does any of the following acts with the intent thereby to force the victim or any other person to make any concession or give up anything of value in order to secure a release of a person under the offender's actual or apparent control commits first degree kidnapping: (a) Forcibly seizes and carries any person from one place to another; or (b) Entices or persuades any person to go from one place to another; or (c) Imprisons or forcibly secretes any person. § 18-3-302 Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping. 2. Any person who takes, entices, or decoys away any child not his own under the age of eighteen years with intent to keep or conceal the child from his parent or guardian or with intent to sell, trade, or barter such child for consideration commits second degree kidnapping. § 18-3-303 Any person who knowingly confines or detains another without the other's consent and without proper legal authority commits false imprisonment. As @ohwilleke pointed out in this answer, this means that as soon as the hypothetical car thief becomes aware that the child is in the car and doesn't then act to return the child to their parents, it becomes second-degree kidnapping. (It's also possible that CO case law has interpreted the statutes differently than I'm interpreting them here, but the plain language seems to require the actual intent to take and/or confine a person illicitly.) | There are various ways in which a minor cannot assist a police investigation, and it might be useful to say in what ways any civilian could do so (TV shows notwithstanding). A civilian cannot conduct a custodial interrogation, nor can most of them gather physical evidence (so that a proper evidence log is maintained including relevant information on method of collection, the evidence isn't contaminated etc. – stuff that requires a modicum of training). They cannot execute a search warrant. On the other hand, anyone can provide information that is useful to the police, and it can be done without giving your name or indicating that you are a minor. A minor can serve as a witness at a trial, and it can be helpful to police to know that they have a witness to a crime. A minor can also be used the same way an adult is used, as a confidential informant. There is not a lot of data on that practice given the confidentiality of juvenile records, but there is an article to read ("Juvenile Police Informants: Friendship, Persuasion, and Pretense". The article does suggest that parental consent may be necessary in some cases (such as wearing a wire to a drug transaction). There is a law in Washington requiring every county's prosecutor to have a local protocol for using informants, and there should be guidelines developed by a work group, however the results (if any) of that group's meetings are not available on the internet. It is possible that there are specific restrictions on the use of minors as informants in some jurisdiction. The article explores the subtle distinction between "informant" and "friend", applied to minors. California has a law that limits the use of minors – none under 15, those above with approval of a judicial officer and parent, though those 13 and older can be used as bait in a cigarette or alcohol sales case. New York does not have a blanket prohibition against using a minor as an informant, but there may be relevant guidelines for a particular department. | Yes and No Selling your own body for sex is legal. Buying sex is illegal. Therefore the transaction as a whole is legal on the part of the seller and illegal on the part of the buyer. See Prostitution in Canada and Prostitution law in Canada. If you think this is odd, you are not alone '... one judge referring to the laws as "Alice-in-Wonderland" and the Chief Justice of the Supreme Court referred to the situation as "bizarre"'. In the circumstances, although I know of no case law on this, it would appear that any contract for prostitution would be void for illegality. Presumably, to enforce payment for services rendered the service provider would need to pursue a quantum meruit claim in equity. | There is nothing illegal about the child asking for nude images, but, depending on jurisdiction and circumstances, there is quite likely to be a serious legal problem with the adult providing such nudes. The exact laws that might be violated would depend a lot on the jurisdiction. The detailed facts would also be significant. But such a situation is fraught with danger, for the adult. Even if there is no ill-intent, such actions could easily be misinterpreted, and might be technically unlawful regardless of intent. Of course, not all nudes are obscene, or even "inappropriate for children". Which are so classified depends on the laws of the particular jurisdiction. | There are no rules against private sales of firearms in Arizona. If you (or your mother) own the guns, you can sell them to anyone you like unless you have reason to believe they are a prohibited possessor. There is no legal requirement for you to validate their identity. There is no limit on the number of guns you can sell to one person. A bill of sale is optional. You don't need a lawyer and, honestly, I'm not sure what a lawyer would do to help you sell a gun. The laws, being what they are, lead some to conclude that this must be how prohibited possessors get their guns. It's not. Most "illegal" guns are bought through straw purchases in which a person with a clean record buys a gun for someone who is not legally allowed to own one. You can work through a licensed dealer if it makes you feel better. If you don't want to use a dealer, you can simply require that a buyer have a concealed carry license as evidence that they are not a prohibited possessor. The CCW is not a surefire way to guarantee anything though. Personally, I would transact a private party sale with individuals via a dealer. You're in AZ. There is no shortage of gun buyers! At the risk of breaking site rules, you can also list guns online. For example, www.gunbroker.com is a popular site and follows an eBay-style bid structure (I have no affiliation to them). This model ensures that you get market price for the gun rather than trusting that a dealer is going to give you a fair price (they won't; they make their money buying cheap and selling at market rate). |
Does a Company Handbook effectively constitute an extension to the Employment Contract In my employment contract it is stated (in so many words1) that I must adhere to the rules set out in the company handbook. Does this make the handbook an extension of the contract? Out of which follows: Would breaking a rule in the handbook constitute breach of contract? Does my employer's updating the handbook constitute a unilateral change of contract? Locale is UK but (I assume) contract law is pretty universal so answers specific to any region are welcome. 1I do not have the contract in front of me and going from memory. | Would breaking a rule in the handbook constitute breach of contract? Generally speaking, yes. Of course, most employment contracts are "at will" so a breach of contract often isn't necessary to terminate employment. Does my employer's updating the handbook constitute a unilateral change of contract? It depends upon what is changed in the update to the handbook. Typically an employment contract would have a term that says something to the effect of "employee shall devote his full time effort to perform the duties he is directed to perform by employer in a satisfactory manner." If the employee handbook says, "part of every employee's duties includes cleaning up his work area at the close of business each day, locking his file cabinets and shutting down his computer", this would typically simply be a definition of the duties of the employee which the employer reserved the right to change in the original employment contract, and not a unilateral change of contract. On the other hand, if the employee handbook says, "vacation days may not be taken during December" when the employee's contract simply said that "you have ten vacation days per year", that might constitute a unilateral change of contract which might not be enforceable for an employee with a fixed term of employment who was not an employee at will, without additional consideration. Locale is UK but (I assume) contract law is pretty universal so answers specific to any region are welcome. I have answered based upon general contract and employment law, but the UK frequently sets mandatory standards for different kinds of contracts and modifies common law rules related to contracts (much more so than the U.S.), so it wouldn't be very surprising if this were modified by a statute of which I am not aware. We have UK lawyers who contribute to Law.SE and they can chime in if there are particular statutes in the UK that apply to this question. | Yes, your clause specifically limits you to only working for COMPANY, even in your off time. Canada does not have a law protecting your right to work secondary jobs (moonlighting) in your off-duty hours. This means that any contract clause specifically limiting you to work with the employer only is valid, and breaking it is cause for justified dismissal. Based on this, do I need to ask for explicit permission to work on such projects? Yes, you will need to disclose any potential "business or occupation whatsoever". You could play contract games by saying "it's only a hobby" or "it doesn't make any money", but you will be opening yourself up to issues. The best thing to do is to disclose your project to your employer and get in writing their permission to work on it with specific terms that you will not be using company time or resources in any way. See: Patterson V. Bank of Nova Scotia | No, a penalty clause is illegal, end of story. A contract could include a "liquidated damages" clause – this is how late fees are legal – that if you breach the contract in a certain way, you will compensate the company for the damage that you have done (bookkeeping, interest on money owed) in a standard and reasonable manner. Incidentally, what you describe is slavery, which is illegal throughout the US. The closest you could get is if the company offers a benefit for staying with the company for some period of time, then the employee might forego that benefit if they don't fulfill that aspect of the contract. | Does B have a legal obligation to inform A that changes were made to the document? This is definitely not a simple yes-no question. One ought to consider not only the tenets of contract law, but also notions of equity and of public policy. On the one hand, courts acknowledge modified contracts that result from a battle of the forms. On the other hand, sliding changes in the contract without adequately directing the counterparty's attention to them tends to contravene the contract law covenant of good faith and fair dealing. In the scenario you outline, imagine the inefficiency and risk of mistake if the parties engage in several rounds of offers and counter-offers by sliding changes scattered all over the latest draft of a contract (this is totally feasible, especially as laws nowhere limit the number of times a party can make a counter-offer). Unless each party is conspicuous about his latest changes to the contract, the dynamics can easily become a matter of which party inadvertently binds himself to unacceptably detrimental clauses (some of which might re-occur after being stricken in a previous draft). This hinders the contract law prerequisite that a contract be entered knowingly and willfully. Although the parties are responsible for reading the contract, subjecting the offeror/offeree to devote valuable resources each time a newly altered contract goes from one direction to the other seems contrary to public policy. Furthermore, that defeats the purpose of negotiations and of the prior efforts each party spent toward the contract (such as valuations and risk analysis). I'm just curious to understand what legally prevents this type of things from happening in general. An offer may include language to the effect of accepting the contract 'as is'. See the provision in the Uniform Commercial Code (for instance, see MCL 440.2207(2)(a)) whereby alterations are precluded "[if] the offer expressly limits acceptance to the terms of the offer". The aforementioned statute also precludes terms which significantly alter the contract. See MCL 440.2207(2)(b). In a context of loan contracts --apropos of your example--, a borrower's unilateral alteration of the interest rate, of payment schedules, etc. constitute material alterations. Indeed, financial institutions are utmost sensitive to changes in interest rates and the timing of cash flows. Even in the case of an offeree's immaterial alterations of a contract, an offeror might prevail under principles of equity. This is more evident in the case of entities which enter and manage a multitude of contracts simultaneously, be it via contracts of adhesion or upon negotiations with each counterparty. In line with my point on public policy, the additional cost of filtering a counterparty's last minute occurrences would make it impossible for economies of scale to develop. | It is very unlikely that such a sentence ("A 6 month non-compete/solicitation is required") is enforceable, because it is way too broad. The reasonable interpretation of the sentence is that the employer has thereby put the employee on notice that such an agreement will be required, and the actual terms of that agreement will be spelled out at that time, but that sentence does not constitute an "agreement". Ad actual agreement has to be supported by consideration, and have a reasonable scope (including place and activities). Texas law disfavors restrictions on job-changing, so an agreement would have to go beyond just saying that "a non-compete is required". Since the letter asserts that it is not a contract, there is no clear contractual obligation (they can fire you anytime they want, it seems). | There is no fixed definition in the law of "outside activities" that is applied generally. This will depend entirely on how the employment agreement defines it, and/or how the management of your company defines it. There may be a useful definition in the agreement, ideally there will be. In the far too common case that the agreement leaves this key term undefined, you will have to ask them how they define it. While it is true legally that when they draft the contract and it is ambiguous, you may adopt any reasonable definition, as a practical matter, if you do not disclose something and they consider it an "outside activity" They may claim this is grounds for discharge. If the employment contract requires you to disclose outside activities, you must disclose them or be in breach of that contract, which is surely grounds for discharge, and possibly grounds for a breach of contract suit. Even if it is not part of the contract, saying that you have no such activities when you in fact do is arguably fraud. Saying that you decline to inform management of your outside activities is probably legal, but might well cause them to cancel the offer of employment. If you do inform management, and the activities are approved, there would be no automatic transfer of any existing IP rights. No transfer could occur without an agreement saying so. Some companies, in their employment agreements (or other related agreements) demand that an employee transfer the IP of any project created or worked on using company resources (such as a company computer or network). Some demand a transfer for any project worked on during the employee's working hours. Some demand a transfer for any project done during the period of employment, but they must clearly specify this for it to be effective. That last is unusual, because many employees dislike it enough to go elsewhere as soon as they can, which tends to be bad for the employer. But in no case can a transfer of IP for a project unrelated to the employer's business, not using company equipment or resources, and not done during work hours, be effective without a specific agreement to this effect. | A distinction has to be made between incompetent and unsatisfactory. Beware defamation laws, when you accuse someone of being professionally incompetent. Poor communication is not grounds for breaching a contract. It is not entirely obvious that your P30s problem is a breach of contract on the accountant's part – it might be, depends on what the contract says. You should hire an attorney to scrutinize the contract, as well as looking into the question of the accountant's duty to you as a customer. It might turn out that the accountant has been negligent, or you may have higher expectations than you contracted for. But you might have grounds to sue the accountant in which case terminating the contract would be preferable (from the accountant's perspective). | An oral contract is (usually) entirely legally binding (exceptions include things like land sales). Written notes do not change that. The important thing about nearly contemporaneous notes is that if the contract runs into difficulty and you need to litigate, they are likely to be accepted by a court as good evidence of what was agreed. They will be much more difficult for the other party to challenge later (they can be challenged now of course - which is part of why they are considered good evidence of what was agreed). |
Can a company legally disable a product on the basis it was acquired fraudulently? I recently bought a product on eBay, that turned out to have been directly bought from the manufacturer with stolen credit card info. A couple months after the purchase, the hardware, which "calls home" on startup, started displaying a message that read "product disabled as identified as potentially stolen". I just checked the terms of sale: ANTI-FRAUD ... XXX reserves the right to make contact using details provided, and lock both XXX accounts and hardware. Is this even legal ? This is really the question I'm asking (can't be too specific on stackexchange), but I'd like to provide more context with respect of my own case: The company failed to implement antifraud protection on their website which is often just one optional line of code away (i'm a payment systems programmer). The company accepts payments from Visa, MasterCard, AmericanExpress and Paypal. They all propose anti-fraud filters and offer a zero-liability to the card owner in case of theft. This means the merchant (which turns out to be the company as well in this case) is fully responsible for handling the chargeback the financial institution imposes on the transaction (even if the goods have been sent). In other words (correct me if I'm wrong), the law consider the loss is the value of the goods sent, i.e. that it is not money theft per se, but theft of goods. Disabling the product seems to me like a way to escape their responsibility. Also, for reasons that are too long to explain, I sent back the disabled product to get a refund (was promised so), but now the company, which probably did not want to accept a stolen product to refund/repair/re-enable it but did so in the confusion of its shitty many-people-for-one-request kind of support is just silent and I'm still waiting for my refund. What kind of specific threats can I do to force them to perform this refund ? To me the ownership situation (they now own the product they disabled) shows that the theft has factually been transferred onto me, for an error they committed and that I would not have done (it's my job). What kind of offices/chamber of commerce should I threaten them to reach out to, knowing the company is in Australia and I'm European customer. | The person getting the item by fraud didn't get any ownership. Therefore when you bought it, you didn't get ownership either. It's still the company's property, and they can do with it what they like (within reason, they wouldn't be allowed to make it blow up in your face). If you sent back the item, good on you, because the item is now with its rightful owner. If you don't like it, you can sue the person who sold the item to you. | It is basically fraud, and there are two ways in which it could be illegal: it might be a crime, and you might get sued for doing it (you would not be fined or imprisoned, but you may have to compensate the hotel chain for their loss). Whether or not it is a crime depends on the jurisdiction. In Washington, there are very many laws against fraud such as RCW 9.38 (credit), RCW 9.45 (numerous things where a business defrauds others), RCW 9.60 (forgery) but none of them would apply to lying about a material fact to a business in order to get a discount. Texas likewise has a long section on criminal fraud. It is not clear from the wording whether a customer lying to a business (not involving forgery, vehicles, credit, or financial institutions) is covered. 32.42(b)(10) says A person commits an offense if in the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices... making a materially false or misleading statement of fact concerning the reason for, existence of, or amount of a price or price reduction The question of interpretation that this raises is whether a person who has said "I'm over 70" so that they can get a discount has made a statement "concerning the reason for a price reduction". The ordinary interpretation of "concerning the reason for" would be that it refers to explaining why or under what conditions a price reduction exists. For the moment, I am skeptical that this definition would include the case at hand, but that will require a search through case law and jury instructions. From the lawsuit angle, you would have knowingly made a false material statement in order to obtain a value, which is illegal, and they could sue you to recover the discount. | Hypothetically speaking, if a program doesn't come with a EULA, does that mean someone in possession of it (who isn't the owner) would be breaking the law if they used it? If the copy on the stick was lawfully made with permission of the copyright holder, then you can lawfully use the software. Someone who lawfully comes into possession of a lawfully made copy of the software (that was not a backup) has the right to use that software in the ordinary way. For example if someone found a USB stick lying on the ground and it had software on it but no EULA, could they use the software? Maybe, but it would be hard for them to know whether they could or not. It might be a backup. It might be an unlawful copy. There was a case where a person found a CD in the trash that was clearly an original. The package had a shrink wrap agreement, but he found the CD without the package. The court held that he had every right to use the software on the CD (since it was a lawfully-made copy and not a backup) and was not bound by the EULA (since he hadn't opened the package). But he was very fortunate in being able to demonstrate these facts. | A TOS is not intrinsically illegal, but an interpretation of a TOS may or may not be supported by a court, that remains to be seen. It probably does not constitute a "deceptive practice" under FTC standards. The TOS is your permission to use the software, and there can be no question that they have the right to impose conditions on customer use of the software. E.g. Amazon cannot freely use software that is only licensed for free educational use. They speak of "ownership" of IP so created and explicitly disclaim any claims about Current Law in Your Jurisdiction. At the crucial point in the agreement, they switch to talking about the license (BY-NC) that they grant when you are not a paid member. The exact details of this ownership are not part of the free tier TOS, but they do seem to add certain protections to "owned" content created under the Pro plan – they are under no legal obligation to make all content universally visible and usable. | A company may retain information to comply with legal obligations, exercise legal claims or rights, or defend legal claims. Maintaining the ability to charge and refund on a credit card is within the scope of their right to retain information. I would not assume that "removing payment method" deletes the data from their database, it means that you can no longer use that method of payment. See this section of Cal. Civ. and this section. A company would need to retain the information somewhere in case there was a reasonable explanation of a charge-back. | The word "dishonestly" is defined in the act (1)A person’s appropriation of property belonging to another is not to be regarded as dishonest— (a)if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or (b)if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or (c)(except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps. (2)A person’s appropriation of property belonging to another may be dishonest notwithstanding that he is willing to pay for the property. The prosecution thus must establish that defendant knows that he has no legal right, that is, it must be established that he knows that it is not a legal purchase. The simple act of purchasing in these circumstances provides no proof of the alleged dishonesty: the prosecution must add something else. For example, testimony that defendant declared "Crikey! This machine is giving me half-off on everything, those suckers! I wish I had bought more" might be sufficient to establish dishonesty. The "intent" of management in installing these machines is legally irrelevant, indeed management's intent is to reduce operating costs. It is management's responsibility to ascertain that the machines function the way they wish them to. It is not self-evident to the defendant that the machine is malfunctioning, but defendant could have actual knowledge that makes the transaction dishonest. | Yes, it's absolutely legal. It turns out that UK retailers offer replacement out of their own politeness and are not required to do so by law. If they gave you refund then that's all they need to do. | Many products can be used for illegal purposes, so selling something that could be used for illegal purposes won't generally result in liability for the producer. Think of software used for computer system and network security testing; it's both useful for legitimate testing and securing systems, but of course it can be used by hackers to find and exploit security holes. Clorox can be used to clean the bathroom or poison someone. If you look at the Terms of Service for https://donotpay.com/learn/terms-of-service-and-privacy-policy/ , you'll see DoNotPay is Not a Law Firm DoNotPay provides a platform for legal information and self-help. The information provided by DoNotPay along with the content on our website related to legal matters ("Legal Information") is provided for your private use and does not constitute advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need advice for a specific problem, you should consult with a licensed attorney. As DoNotPay is not a law firm, please note that any communications between you and DoNotPay may not be protected under the attorney-client privilege doctrine. and Your use of the Service is subject to all applicable federal, state and local laws and regulations. Unauthorized use of the Service is prohibited, and violators can be prosecuted under federal and state laws. Virginia law and Federal law will govern the interpretation and enforcement of these Terms. That's for the web service, but it's useful to point out the distinction between a user using DoNotPay for themselves and getting a script to read in court, and the DoNotPay service actually participating in a court appearance representing the user. The reason DoNotPay pulled the plug on the court appearance, as pointed out in the article https://www.businessinsider.com/donotpay-ceo-says-risks-jail-ai-robot-lawyer-used-court-2023-1 is that DoNotPay's AI "robot" lawyer was going to actively argue in court, and the state bar objected, because that's what only lawyers are licensed to do. If the DoNotPay source code was released and someone used it on their own computer to analyze a legal situation and give themselves options and offer decisions, this could probably be seen as little different than someone reading books that analyze the law and strategies and offer options of how to go about representing oneself in a court. The software would be used to make decisions before and after court; the software is not actively arguing and making decisions for the user in court. Of course, in this brand new world of AI, the final assessment of whether or not AI software can be used to give others (or oneself) legal advice - either in court and/or prep for court - will likely have to be finally determined by litigation and courts. The idea of open source or closed source could possibly come into play to determine exactly how the software works, but would not be the sole criteria to determine if the use of the software is legal or not. The software could be simply a "decision tree" (little different than textbooks) that follows a hard-coded if/else script, such as If you get a ticket, go to court; if you plead guilty, this is what happens; if you plead not guilty, these are your options. Or, the software could have true AI aspects, i.e. it develops arguments for being not guilty from your past legal history, and develops and responds to the court's actions with counter arguments, and actually gives opinions to the user on what they should do. If the software is open source, we all see how it works and if it is a decision tree or real AI (and the software can also be modified by users and other developers.) If the software is closed source, we can't see how it works, and we don't know if it is a decision tree or AI, unless it it is opened, possibly through court order during possible litigation to determine if it is giving legal advice. Again, AI is a brand new thing in the legal world. |
US presidential qualification; 1994 "equal treatment of women in conferring citizenship to children born abroad" Inspired by Legal to become president if U.S. adds new state/territories? People born before May 24, 1934, to a US citizen mother and a non-US-citizen father, outside US territory, were not US citizens when they were born. But in 1994, 8 USC 1401 was amended by the addition of paragraph (h): (h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States [shall be a national and citizen of the United States at birth]. Would such a person be considered a "natural born citizen," for the purpose of qualifying for the presidency, from October 25th 1994? In other words, after having lived in the US for at least 14 years, could such a person run for the office of the president or the vice president? Would the answer depend on whether the person had been naturalized before 1994? | Would such a person be considered a "natural born citizen," for the purpose of qualifying for the presidency, from October 25th 1994? In other words, after having lived in the US for at least 14 years, could such a person run for the office of the president or the vice president? This is an unresolved issue. Some scholars believe that to be a "natural born citizen" you have to be a citizen on the day that you are born. Other scholars believe that a "natural born citizen" is someone who gains citizenship by a means other than naturalization. No binding precedents resolve the issue because the phrase "natural born citizen" is used nowhere else in the law besides qualification to be the President of the United States, and the issue can't be resolved until someone is purportedly elected because there isn't an actual case or controversy until then, and there haven't been an examples that have come up that have tested this issue. My personal guess is that the courts would make every effort to find that someone who has been elected by the citizens of the United States as President, despite the inevitable debate by the public over someone's qualification as a "natural born citizen" during the campaign, is eligible to hold that position, because to do otherwise would seem massively undemocratic. So, I suspect that retroactive citizenship at birth would be held by the courts to make someone a "natural born citizen" and eligible to serve as President. Then again, I could see this issue being resolved by the courts on basically partisan lines too with conservative judges tending to hold that a liberal candidate was ineligible for office, and liberal judges making the opposite conclusions about a liberal candidate. This is one fair reading of what happened in the case of Bush v. Gore. Would the answer depend on whether the person had been naturalized before 1994? The citizenship by naturalization is irrelevant to whether you have another grounds for claiming citizenship that was present at birth or did not arise from naturalization. On October 25th, 1994, the naturalization became redundant. | Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes. Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.* But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof." So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."). * I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof." | Impeachment In addition to the Constitutional qualifications, one may become ineligible to federal office by being impeached by the House, convicted and removed from office by the Senate, and having the Senate add the "disqualification" term to the sentence. This is surely something done by the legislature but it is not done by passing a law. Criminal Conviction One may also become ineligible by being convicted of treason or insurrection, and possibly other relevant federal offenses. Specific Laws Specifically 18 U.S. Code § 2381 provides that: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. (emphasis added) 18 USC §2383 provides that: Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (emphasis added) 18 USC §2385 (originally passed as the Smith Act)provides in relevant part that: Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof— Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. (emphasis added) 18 USC §2387 provides in relevant part that: (a) Whoever, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States: (a) (1) advises, counsels, urges, or in any manner causes or attempts to cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States; or (a) (2) distributes or attempts to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States— Shall be fined under this title or imprisoned not more than ten years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction. (emphasis added) (See also Chapter 115 which collects these and related sections of title 18.) (See also the Wikipedia article) (See further "A Civilian's Guide to Insurrection Legalese" from The Marshall Project.) Case law In United States v. Burr, 8 U.S. (4 Cranch) 470 (1807) Chief Justice Marshall wrote an opinion overturning the conviction of Aaron Burr, because Burr was not actually present at the overt act proved, as charged in the indictment. In Cramer v. United States, 325 U.S. 1 (1945) a conviction for treason was overturend because the court held the "overt acts ... as proved were insufficient to support a finding that the accused had given aid and comfort to the enemy" Possible Future laws While treason is defined (or more exactly limited) by the constitution (Article III section 3), nothing in the constitutional provision requires or specifically authorizes that the penalty include ineligibility to office. (It merely says "The Congress shall have power to declare the punishment of treason".) There is no specific Constitutional authorization for 18 USC 2383, 2385, or 2387, or their penalty sections beyond the general authority of Congress to pass laws and define crimes and their penalties. I am not certain that "employment" in 2385 and 2387 includes elective office, but I suspect it does. 2383 clearly includes elective office. Thus Congress has passed laws, with no specific constitution authorization, that deny people, as punishment for relevant crimes, eligibility to office or employment under the United States. What Congress has done in one case, it could do in another, if it saw fit. Congress could pass a law creating a new offense, or modifying an existing offense, to add the penalty of disqualification. But the Constitutional prohibition of ex post facto laws would mean that such a law would not apply to conduct that occurred before the law was passed or amended. Conviction required Congress may not declare a person guilty of a particular crime; that would be a bill of attainder, which is also specifically prohibited in the Constitution. A criminal conviction by a court is required to trigger the ineligibility provisions of sections 2381, 2383, 2385, 2387, or any similar law. Fourteenth Amendment Section 3 of the 14th Amendment to the US Constitution reads: No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. This forms another ground whereby an individual can be barred from some federal and state offices, but it is not one that can be invoked by Congress for specific people by name. Indeed it is not clear how it can currently be invoked. This provision requires a judicial determination that it applies to a specific person. From 1868 to 1872 there was a law in force for this purpose, but in 1872 Congress granted a broad amnesty which exempted most of those who would otherwise have been subject to this provision because of the US Civil War, and the law was soon repealed. In the wake of the events of 6 Jan 2021 several bills have been introduced to create ma new enforcement mechanism for this provision. To the best of my knowledge, none have yet been passed into law. See "The 14th Amendment’s Disqualification Provision and the Events of Jan. 6" for so9em relevant details and background. That article also says: Section 3 is different from a disqualification from federal office imposed as a sentence for an impeachment conviction. A disqualification sentence from the Senate is final and not, for all intents and purposes, subject to judicial review. By contrast, Congress cannot simply declare an official outside of that body ineligible under Section 3 without the concurrence of the courts. To hold otherwise would allow simple majorities in Congress to oust federal and state officials without judicial scrutiny ... | The law is not settled and will shortly be before the High Court (sitting as the Court of Disputed Returns) but theoretically: yes! The provision on Disqualification is s44, specifically subsection (i): Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power, shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. Which, on the face of it, makes eligibility to sit in the Australian parliament dependent on the citizenship laws of every other country in the world: all 195 of them. Indeed, right now, any citizen of Australia (which is itself a qualification by virtue of s16 or s34), is allowed to live and work in New Zealand, and to vote after a year's residence - that is they are "entitled to the rights or privileges of a subject [but not a citizen] of a foreign power". Therefore, interpreted that way, no Australian is entitled to sit in parliament. Of course, a simple referendum1 could change the Constitution to fix that - except, a referendum must be called by parliament and we no longer have one. Personally, I think it is unlikely2 that the High Court will rule in such a way that would plunge the nation into a constitutional crises by deciding no one can sit in parliament or that who can sit is determined by the laws of foreign nations. Notwithstanding, at present there are 5 MPs who have been referred to the High Court (2 of whom have already resigned), 2 more who will be referred when parliament resumes in September, 21 known to have been born overseas who have not confirmed that they have renounced any foreign citizenship they might have and an unknown number who may have foreign citizenship by descent. Each of the cases is distinct: some were born overseas, some have foreign citizenship by descent, one is a 3rd generation Australian whose mother registered him as an Italian citizen when he was a child (17) and he claims he never knew. How the High Court will rule will almost certainly vary with the particular circumstances but its anyone's guess what they will decide. However, it appears that the drafters of the constitution intended that it should capture all dual-citizens, not just those who sought dual-citizenship by a deliberative act. If a person is found to be ineligible then different things happen depending on if they ware a Senator or a Member of the House of Representatives. For a Senator, the High Court would recount the results of the election - because of the strange way voting works for the Senate, only educated guesses can be made about who would replace whom (especially since the same citizen issue may apply to other candidates on the ticket). For a Member of the House of Representatives, a by-election would be held - because the Liberal/National government has a majority of 1 and 3 of their members are in the gun the results will be ... interesting. 1 Referenda in Australia are not simple. The Australian Constitution is specifically designed to be difficult to change while at the same time granting broad powers to parliament. It takes a nationwide vote and must be carried by a majority of voters nationwide and a majority in a majority of the six states (i.e. 4 or more). Since federation in 1901 there have been 44 referenda of which only 8 have been carried. In is generally accepted that a referendum is impossible to pass unless it has bi-partisan support: and sometimes not even then. 2 And by "unlikely" I mean "impossible" - a conclusion that the constitution must be read in such a way that parliamentary democracy becomes impossible would be contrary to law. Update in light of the High Court’s ruling: No Providing a potential parliamentarian has taken “all reasonable steps” to renounce foreign allegiance they are permitted to serve even if the foreign power refuses to allow them to renounce citizenship. In practice, this means writing to the foreign embassy and renouncing citizenship. | If the Attorney General has officially determined that you renounced US citizenship for the purpose of avoiding taxation, you have a lifetime ban under INA 212(a)(10)(E), and there is no immigrant waiver for this ban. See 9 FAM 302.12-6. I am not sure if the Attorney General has ever made such a determination about anyone. Otherwise, I don't see anything that would prevent you from immigrating to the US like any other foreigner. | A US citizen who resides abroad can register to vote in federal elections in the last state or territory where they resided in the US. So in your example, the US citizen who was resident in Puerto Rico, and who moves to Canada without first residing in any other state or territory, would register to vote in Puerto Rico. Since he is registered to vote in Puerto Rico, he does not vote in an election for choosing presidential electors since Puerto Rico doesn't have any presidential electors. Only the 50 states and DC have presidential electors, and each of them chooses the electors based on elections by people registered to vote in that state (or DC), so he would have to be registered to vote in some particular state or in DC to participate in an election for choosing presidential electors, but he does not qualify to register to vote in any of the states or DC, because he was not resident there last. Yes, US citizens who are neighbors in Vancouver, Canada, one of whom is a former New Yorker and the other of whom is a former Puerto Rican, would be registered to vote in two places (one in New York and the other in Puerto Rico). They would get two different ballots, and may even have different dates for elections (for elections that are not held on the November election day). They would have different offices to vote for, and, in the case of the ballot for the November election in a presidential election year, the New York ballot would contain an election for a slate of presidential electors, while the Puerto Rico ballot would not. | For the US, the Uniformed and Overseas Citizens Absentee Voting Act provides that just about any US citizen living abroad who has previously resided within the US is entitled to vote in federal elections as though they still lived at their last US address, provided they'd be eligible to vote if they still lived at that address. If you're overseas on duty in a uniformed service of the United States or as a spouse or dependent of such a person, it's based on your legal residence instead. This is a right of US citizenship; dual citizenship doesn't affect it. This State Department website has details; there's a special process you can generally use instead of the state absentee process. UOCAVA applies to all federal elections (including primaries); state and local election eligibility is up to the state. For Canada, citizens of Canada living there seem to have the right to vote regardless of any possible loyalty issues with another country. Canadians living outside Canada for over five years can't vote, but if you live there it seems as though it is allowed. So, the answer is seemingly "yes." For a definitive answer, contact the US consulate and Canadian election officials. | The Supreme Court rules in US v. Wong Kim Ark ruled that the Fourteenth Amendment, which states All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside It is not disputed that said areas are "in the United States". The court found that "subject to the jurisdiction thereof" is intended to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state neither of which are the case in your scenario. Technically, the child is not "eligible" for citizenship, the child has US citizenship, it is just a matter of getting a government official to recognize it (e.g. in issuing a passport). |
Are Phone Number lists with no other personal data allowed under GDPR? Given a phone number list stored in a format such as this: 02321 203201, 203120 023102, etc. Would this be classed as personally identifiable information under the new GDPR regulations or as there is no other personal data associated with these numbers, would they be compliant under GDPR? | Yes, phone numbers would generally qualify as Personal Data under GDPR. It would be so irrespective of whether you have also stored other information along with the phone numbers or not, since also information that indirectly could identify a natural person is Personal Data (provided that there are, somewhere else, public or not public, a register of who holds the specific phone number). See Article 4(1) GDPR. (One could possibly argue that the phone numbers would not be considered personal data if there is no actual register of who owns a specific phone number with any other party. Or if such register is in practice not available for anyone. It might be so in some cases, although I would not rely on it.) Whether you have the right to process the phone numbers must be assessed based on its lawfulness (see Article 6 GDPR). It could be based on consent, performance of contract, legitimate interest or any other ground set out therein. | In the general case, it seems unlikely, based on the wording (which is convoluted). In certain cases, if the president of Russia posts "My name is Vladimir Putin", that post is personal data. On the other hand, you might, based on my writing, conclude that I am from the US, and you might even conclude that I'm in Washington state, but that doesn't distinguish me from 7.5 million others, so on those grounds that is not personal data. Eventually, though, you might identify me specifically from other things that I may have said on SE. The definition depends on two parts. First, personal data is "information relating to an identified or identifiable natural person". Any "information" provided by a natural person is "related to" that person (as is any "information" that is about such a person). The second part defines "identifiable natural person", that is, who is an "identifiable person"? Every person can, in principle, be identified by reference to some label or description of fact about them, so every person is an identifiable person, under this definition. This means that every piece of text that refers to an individual (not even text which can identify the person) is "personal data". Obviously, any individual can be uniquely identified by some collection of identifiers; the problem is that the wording of the law does not explicitly say "using that supposed personal data". If I mention that I have a relative named Knudt, that would technically be personal data: I've given information that relates to a person, though you have no idea (and could not possibly figure out) who that person is. Another term that the regulation defines and uses in a few places is "pseudonymization", which is defined as the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organisational measures to ensure that the personal data are not attributed to an identified or identifiable natural person The point of interest here is that this says that "personal data" which cannot be attributed to an individual is, nevertheless, still personal data. I think the most important part of the regulation is art. 6, which defines lawfulness of processing, especially para 4., which allows consideration to be given to safeguards such as pseudonymization. | Recital 47 contains: The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest. So even if you never explicitly gave your consent for any marketing purposes, they can send you marketing (e)mail. However, art. 21, paragraphs 2-4 contain: Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing, which includes profiling to the extent that it is related to such direct marketing. Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes. At the latest at the time of the first communication with the data subject, the right referred to in paragraphs 1 and 2 shall be explicitly brought to the attention of the data subject and shall be presented clearly and separately from any other information. So you can object, and they must stop sending marketing mail. They should also have told you that you can object. And it does not matter how the marketing is presented. A unique code does not change anything (regarding the GDPR). Also, they are not allowed to add marketing to any mail you want to receive, like service availability notifications, after you have objected. | There are two "cancellations" here. There is a contract between the customer and the company. This contract was ended. Also, as part of GDPR obligations, the data of the former customer was removed. Now the "credit" part suggests a pre-paid phone, which are often described as "no contract". Legally this is incorrect. There is a contractual obligation for the phone company to deliver phone services (typically expressed in minutes of call time, # of text messages and/or MB of data). Now the pre-paid contract with high likelihood had a clause which dealt with inactive accounts. For instance, the minutes of call time may expire after 5 years. A "credit" that has not been converted to minutes, messages, or megabytes may also expire. When this happened, the company might need to keep the customer data on their records for two more years (for legal reasons), so the 7 year period does not sound weird at all. As soon as the legal reason to retain the data has ended, the GDPR indeed states that the data should be removed. That act is not connected to the credit expiring years before. | Your VPN scenario is why you have to show the banner to everyone. If you somehow knew beyond any doubt that someone was not in the EU, then you would not have to show a banner, but because you can't verify that, you should always show the banner. Doing so also protects against accidentally violating a similar law in another country; the GDPR is the best-known privacy law, but it is far from the only one. It's good practice to ask for people's permission before collecting their information anyway. | Art. 15(4) GDPR says: (4) The right to obtain a copy referred to in paragraph 3 shall not adversely affect the rights and freedoms of others. If I was the controller in this situation, and I believed that this would endanger the students that have criticised the professor, I would base my argument for not complying on this. In addition, Art. 85 GDPR requires member states to: [...] reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information [...] So you may be able to argue that the students posting messages are engaging in "processing for journalistic purposes and the purposes of academic, artistic or literary expression", depending on the laws of the particular member state. (edit: this could be difficult since you mention it is a private database). The second case seems just like the first in terms of GDPR, but may constitute defamation. Defamation (or libel) laws differ wildly in each country; he Wikipedia article on Defamation explains the situation in each member state in more detail. In the third case: if the professor submits a request based on the rights of a data subject other than himself, they don't need to comply. These requests need to come from the data subjects themselves, not just a random person assuming authority. (although I suppose it's possible for them to give power of attorney to the department head if they wanted to) Personal data and the rights that GDPR provides to data subjects always relate to a natural person, not an institution or a company. | Yes, encrypted personal data potentially still is personal data, so some prior thought is necessary. But are you a controller who is processing this personal data? Possibly not. This hinges on what kind of metadata you process, and whether the encryption happens under your authority, e.g. by a software that you provision. If all you can ever get is the encrypted data but not the plaintext, then you can probably treat this similar to pseudonymous or anonymous data. A related example is a postal service. Letters might contain sensitive personal data. But the postal service is not processing the letter contents, and cannot be treated as a controller of this data. (The postal service is prevented by law from processing this data, you are prevented by the encryption). However, a postal service processes personal data like addresses on the envelope. You might want to create a Records of Processing document, which will help you understand what (potentially) personal data you will process. If you are processing patient data on behalf of a healthcare provider, you might want to look into whether you are a controller or a processor. Processor status is not automatic but requires a suitable contract with the controller. As a processor you still have to take appropriate security measures, but you are not responsible for determining the purposes of processing or for responding to data subject requests. | Do I need to inform the user about storing the score locally? No, there is no need as long as you don't transmit, store or process any personal info. It's doubtful that the score could be considered personal info, but you're not sending it to your servers in any way, so you don't seem to be processing it anyway. Do I need consent for using non-personal AdMob? You have to check this with AdMob, but usually, if it is non-personal, they shouldn't be processing any PI, so you're clear without informing. Do I need to ask for the age? How should I handle kids? Again, you're not processing any PI, so regarding GDPR there isn't any problem. Can I disallow a user from using the app if consent is not given? If you needed consent, no, it would be unlawful to block a user for not giving consent, unless it is impossible to provide the service without it. See recital 43: Consent is presumed not to be freely given if [...] the performance of a contract, including the provision of a service, is dependent on the consent despite such consent not being necessary for such performance. |
Developing software under GPLv3 and selling the source code I am a software freelancer (basically, I own a software company which is just myself), so legally, I'm the bearer of responsibility. Recently, I have been asked to develop a piece of software. However, the deliverable is not a binary file, but source code. This project has been outsourced several times, and I'm at the end of the outsourcing chain. I use several GPLv3 libraries in this project, and the Qt framework, which has a commercial license, but is free when licensed under LGPLv3. The companies said they are okay with this. Is it okay to develop the software, sell the source code and not make it available publicly? Or am I legally obligated to make it available publicly? If so, is it okay to wait until the code has been delivered to the initial outsourcing company? This is in the Czech Republic, by the way. The initial outsourcing company is Italian. | The GPL doesn’t require you to distribute the software to anyone. The only requirement to distribute something is that if you do distribute the software to someone as a binary, you must also distribute the source code to them at no additional charge. The focus of the GPL is ensuring freedom for people who have copies of the software, not ensuring that the software is available to the world at large. Because your final deliverable is source code, you’ve already complied with the requirement to distribute source alongside object code. You have to comply with the requirements in section 5: a) The work must carry prominent notices stating that you modified it, and giving a relevant date. b) The work must carry prominent notices stating that it is released under this License and any conditions added under section 7. This requirement modifies the requirement in section 4 to “keep intact all notices”. c) You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it. d) If the work has interactive user interfaces, each must display Appropriate Legal Notices; however, if the Program has interactive interfaces that do not display Appropriate Legal Notices, your work need not make them do so. You have to license the software to the company that hired you under the GPL v3 (since parts of it were licensed to you under GPL v3), so you can’t stop them from distributing it to the world. But nothing requires you to distribute it to the world. | If it's patented then it doesn't matter that you independently came up with it. Most software is not patented, though. Most developers do not even think about patents when writing code. In theory you could spend your time keeping up to date on software patents so that you avoid infringing. But this probably only makes sense for specialists who would want to read the latest patents in their field anyway. All software is protected by literary copyright, though. In this case they will try to prove that you did not independently created it, and did copy it. Whelan v. Jaslow in 1986 ruled that structure, sequence and organization of a computer program were protected by copyright. So you could be liable even if you did not just copy and paste sections of code. But even if you're worried the court would get things wrong and think you copied a program when you never even saw it in the first place, there is really nothing you can do about it. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | Yes. This is a frequently asked question on the foundation's homepage, and answered without ambiguity (source): Can I use a Raspberry Pi in a commercial product? This is a very common question, and the answer is yes! Once you have bought a Raspberry Pi, it's yours to do with as you wish. You would be in good company too, as in fact the Raspberry Pi is regularly used and sold for commercial applications third parties. Note that this the default consequence of a contract of sale in all jurisdiction I know of (but I am not a lawyer): The seller does not retain property rights in the particular item, and by the mere selling of the item implies there are no other rights that might prevent the buyer from using it as they wish. Apart from the particular computer now in your property, there are other legal requirements: "Copyleft" softweare: Large parts of the Raspbian software are licensed under "copyleft" licenses (importantly, versions of the General Public License, GPL). These licenses are meant to provide your customers with the means of reproduciing and building upon the "copylefted" software. You will need to provide your customers with the source code to those software items, the tools and documentation needed for building, and a written notice. Your own programs need not be licensed under a "copyleft" license, provided that you don't build on (distribute "derative works" of) "copyleft" software. The open source licenses involved are not meant to exclude commercial use, and there are helpful compliance guides available ( a, b ). Non-free software: Make sure to not include non-free software, like Mathematica or Oracle Java, which are not licensed for commercial redistribution. Trademarks: Your use of the words "Raspberry PI" or the raspberry logo is subject to restrictions, as is usual with trademarks. Speaking of the logos: You can request permission to use their "powered by Raspberry Pi" logo. Market regulations: You need to abide by regulations, for example safety and electromagnetic interference. Repackaging the Pi might mean you'll need to test and recertify your product, I'm not an expert. Video codecs: Some Raspberry Pis (up to 3) include specialised video decoding hardware. If you want to use it with the MPEG2 codec, you'll have to buy an activation key for small one-time fee per device - £2.40 for MPEG2, £1.20 for VC-1; other codecs are already activated. I don't think you'll need a license even for commercial, for-sale devices, but I am not your lawyer. Just to be clear, nothing prevents your buyers from cloning your software. (This is not a consequence of you providing the Raspbian source code - they can just clone the contents of your SD card.) While you can retain copyright in your own code, you'll probably have no effective means of detecting infringement. However, the physical design of the rest of your device will not be affected. Your business model needs to account for this fact. | IANAL, just a programmer with an interest in legal rules. Due to the very permissive nature of the MIT license, no, it does not appear that anything illegal has been done. Specifically, the section to deal in the Software without restriction, including without limitation the rights to use, copy, modify, merge, publish, distribute, sublicense, and/or sell copies of the Software (emphasis mine) grants everyone the right to modify your code and share those modifications, provided one includes the license. Since this person has included your license (including your copyright notice), they have followed the conditions of the license and are able to share your stuff. Legally. Ethically, I still think its ****. This might be a good starting point in selecting a license (note the Modification column). https://en.wikipedia.org/wiki/Comparison_of_free_and_open-source_software_licenses The CC-BY-SA license family, as mentioned by Ron Beyer in comments is on this list, for example. TL;DR: You unfortunately granted a more permissive license than what you wanted/needed to. This was a BadThing(TM), analogous to giving too broad of access rights to a method or class. Determine your desired permissions, then select a license that matches what you'd like to grant. | Interesting that they don't give a source and also don't link to anywhere (such as Wikimedia commons). So I assume that content is google's own. So generally speaking: No, when no license is provided, that means you can't use whatever it is in a project of yours (whether commercially or not), because the "default", when nothing is specified, is that no license is given. So unless you find a license that grants you a permission on google's own content, these sounds can't be used freely. | So-called AI software does not enjoy a special legal status (at present: one never knows what new law might be added). The question of whether any software can be distributed "safely" or "responsibly" is also not a legal issue. Nor is "true sentience" a relevant consideration, and nothing is guaranteed. When you distribute software of any kind, there is an implied warranty that the product is "fit", and if software kills you, you may be able to sue the creator for negligence. A software creator may then want to disclaim liability, by saying "WARNING: THIS PROGRAM MAY KILL YOU. OCP IS NOT LIABLE FOR ANY INJURIES ARISING FROM USE OF THIS PRODUCT". This may or may not actually remove liability. In the UK "liability for negligence occasioning death or personal injury cannot be excluded", so such a disclaimer will not prevent a suit against the manufacturer. In the US, the issue is determined at the level of the state – here is a summary of the law in the states. Probably the primary question would be whether such a disclaimer is an unconscionable term, and the second question is whether the act constituted gross negligence (not simply "negligence"). Mississippi exceptionally does not allow disclaimers, but even then, it does allow disclaiming liability when it comes to computer hardware and software. A software disclaimer is not inherently unconscionable, though perhaps some specific disclaimer would be found to be. Courts typically disfavor disclaimers in the case of gross negligence, and again determining what constitutes "gross negligence" is determined on a state by state basis. If the act shows "reckless indifference to the rights of others" and "failure to use even slight care or conduct that is so careless as to show complete disregard for the rights and safety of others", then the act might be grossly negligent. | Such clauses are called "copyright assignment", "invention assignment", and/or "works for hire" clauses, partly depending on the clause's intent and wording. They're pretty common in employment contracts for software development and some creative positions. Frankly, the clauses don't actually do much, at least in the US -- copyright law already recognizes the concept of works made for hire (which belong to the employer), and claims too far beyond that are often rejected if they aren't obviously related to company business. With that said, your hypothetical programmer's painting is safe unless it depicts, say, the contents of an email from the CEO. :) Even if the clause technically entitles the employer to claim ownership, the employer has no legitimate interest in doing so. Likewise, that app created outside work is safe as long as it is created using no company resources and is unrelated to the employer's business. If the app is obviously related, that's where things get hairy. |
Germany: Does a github.io hosted site require imprint / data privacy statement according to the GDPR? github offers free publicly accessible data storage. Many people use that to present their personal profile where they e.g. advertise for freelancing services. An example url could be http://username.github.io. If I have such a personal page where I advertise services, do I need to make sure I have an Impressum and a data privacy statement to comply with the new General Data Protection Regulation DSGVO? It would be hosted by github and linked to and accessible only via github, not e.g. a domain of mine. Though it would still be possible to e.g. include a contact form that sends visitor data to my email address. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | Either approach can be GDPR-compliant. An issue to consider is that you as a data controller relying on consent “shall be able to demonstrate that the data subject has consented to processing of his or her personal data” (Art 7(1)). This might be simpler if a record of the consent is linked to a user account. On the other hand, the GDPR's data minimization principle would suggest that decentral, offline approaches are preferable. So you do have some flexibility here, as long as you feel comfortable demonstrating that your approach is compliant when investigated by a supervisory authority. In many cases, consent is not an appropriate legal basis to start with. It is one of several options in Art 6(1) GDPR. If a data processing activity is necessary for fulfilling a contract with the data subject, then Art 6(1)(b) is more appropriate. If the processing is necessary for a legitimate interest, then Art 6(1)(f) would work – after conducting a balancing test. Art 6(1)(a) consent is appropriate when the processing activity is not necessary, or when a legitimate interest balancing test doesn't go in your favor, or in some cases when required by law. For example, consent is required when processing special categories of data (such as biometrics), or when accessing or storing information on the end user's device, beyond what is necessary for a service explicitly requested by the user (the “cookie law”, but much more general than cookies). Consent also has heightened compliance requirements compared to other legal bases. The data subject must be able to make a free decision, without any coercion. You must not use dark patterns. You must leave the data subject a real choice. You must not make access to your app conditional on giving unrelated consent (like providing access to a game only when the user gives consent for personalized ads). The data subject must be able to easily withdraw consent later, without suffering detriment for this. The EDPB has issued relevant guidelines that might be helpful here: EDPB guidelines 05/2020 on consent EDPB guidelines 2/2019 on Article 6(1)(b) in the context of online services (also relevant for apps) TL;DR: what is “necessary” for performance of a contract is an objective question, and should generally be considered from the data subject's perspective. It is not possible to circumvent consent requirements by putting unrelated processing purposes like “analytics” into a services' terms of service. The main purpose of this document is to serve as a rebuttal of Facebook's GDPR compliance strategy. But it's perfectly fine to avoid asking for consent for those processing purposes that are actually necessary for the user. I've noticed that you mentioned various Google services like Analytics and Firebase. To the degree that your use of these services implies an international transfer of personal data into the US, it might be impossible to be GDPR-compliant. Be wary of claims that you're only transferring “anonymous” data, as the GDPR has a fairly broad concept of identifiability. | There is no general prohibition against taking down material, even non-infringing material, which is posted by some person, but there is a risk to the service provider. Abstracting away from the specifics of github, a Provider has some agreement with the User whereby User rightfully makes Stuff available on Provider's site. Arbitrarily removing Stuff (in violation of the usage agreement) may cause damage to User, who may sue Provider, and Provider will avoid that if possible. DMCA protects Provider from copyright infringement suits by Victim, providing the proper DMCA procedure is followed, and it allows Provider to remove Stuff without fear of getting sued by User (17 USC 512(g)). This protection is not available if the takedown notice is not proper. (As a case in point, the entire series of Harry Potter books is still out there freely on the internet, because only the rights holder can demand a takedown, and the rights holder seems to not be concerned). | The GDPR actually does require you to follow DNT in Article 21: In the context of the use of information society services, and notwithstanding Directive 2002/58/EC, the data subject may exercise his or her right to object by automated means using technical specifications. I think this is quite explicit. | It seems clear that this is personal information under the GDPR. If you are subject to the GDPR, you need to have a "lawful basis" to store or process such information. (You are subject to the GDPR if you are locates in the EU, or if your users are. My understanding is that it is location at the time the app is accessed that matters, not a user's citizenship. I am not totally sure about that, however. Unless your app is limited to non-EU access, it it probably safest to comply with the GDPR) The degree of precision of your location data will not matter -- a specific city is quite enough to make it personal data if it can be tied to a specific person. There are various lawful bases that may be relied on for processing and storage, but explicit consent is probably the one with the widest applicability. To use consent as the lawful basis, you must present an OPT-IN decision to the user, and record the results. If the user does nothing, the result must record lack of consent. You may not use a pre-checked consent box or another mechanism that has the effect of an opt-out choice. You should be clear about what information will be stored, and how it will or might be used. You will also need to consider how your app will function for those who do not consent, and how to handle requests to withdraw consent. So if an app obtains user consent to store location data in a manner that complies with the GDPR, it may store user location data. The consent should make the possible uses of the data clear. If the data is to be shared, the consent should make the possible extent of sharing clear. Some previous questions and answers here on law.se dealing with GDPR consent that seem possibly relevant: User consent required under GDPR What provisions should I make regarding GDPR consent when users do not sign themselves up? GDPR - Withdrawn user consent Opt Out Consent under GDPR | Most likely yes if you are subject to UK or EU laws: The EU ePrivacy directive and implementing laws such as PECR in the UK require that you obtain consent before accessing information on a user's device, unless that access is strictly necessary to perform a service requested by the user. Cookies and similar technologies such as LocalStorage are stored on the user's device. Analytics are not strictly necessary to display a website. Thus, you need to obtain valid consent before setting any analytics cookies. GDPR and ePrivacy/PECR have some interactions: Even though the cookies might technically be set by GoSquared, you as the website operator are responsible for compliance. You are the data controller, the third party analytics are usually a data processor who only process data on your behalf. You must ensure that the data processor is compliant. Even if they were a joint controller you'd be responsible for what happens on the website (relevant precedent is the Fashion ID case). While ePrivacy originally had a fairly weak concept of consent (e.g. “by continuing to use this site, you consent …”). However, the GDPR updated the definition of consent, so that valid consent must be freely given, informed, actively given, and specific. If you set cookies for different purposes in addition to analytics, users should be able to give or withhold consent for analytics independently from other purposes. Since consent must be actively given, consent is never the default, e.g. pre-ticked checkboxes are not compliant (relevant precedent is the Planet49 case). Like Google, GoSquared stores data in the US. You are causing personal data to be transferred into the US, which is an international transfer. Before it was invalidated earlier in 2020, such transfers were easy to do under the Privacy Shield adequacy decision. Now, such transfers are only legal if you sign SCCs with your data processor, and your risk assessment indicates that your user's data is sufficiently safe there, despite your processors potentially being legally unable to comply with the SCCs. Fortunately for you the UK's ICO has taken a more industry-friendly stance on this matter than other countrie's data protection agencies. Why do so many websites use Google Analytics (GA) without requesting proper consent? A variety of potential reasons: They are actually non-compliant. After all, GA is not GDPR-compliant in default settings, and Google doesn't do a good job of providing essential information. Many data protection agencies have indicated that cookie consent enforcement is not their focus. GA can be used without using cookies/LocalStorage/…, and thus without requiring consent under ePrivacy or PECR. The websites might not be subject to EU or UK laws such as ePrivacy. | If the website containing the GDPR-wall processes any personal data of users who hit the GDPR-wall, the GDPR applies to that website. This can be as simple as writing a logfile of all visits to the website. In this case it will be illegal if the website owner does not comply with the GDPR. However a supervisory authority would probably not spent any time on such a minor violation. As long as the the website with the GDPR-wall does not process any personal data, the GDPR does not apply, so nothing in the GDPR can forbid the GDPR-wall. Some related remarks: The GDPR does not require a "privacy policy" on the website if the website does not process any personal data. If personal data is processed based on consent, that consent must be freely given. Also it may not be disruptive. So a cookie wall asking for consent would be illegal. But the GDPR does not care about any other disruptive popups, as long as they are not related to asking for consent. Using GeoIP is a perfect way to implement such a GDPR-Wall, because it would block everyone from within the EU, but nobody else. So it blocks exactly those for who the GDPR would apply. In such a case it would not be reasonable to expect anything more from a website owner. A user which uses a proxy, can not expect to be protected by the GDPR, because it bypasses a restriction set by the owner of the website. A webserver does use the IP-address of all incoming requests, to send the reply back. That could be considered a processing of personal data, but everybody seems to agree it is not. I am not sure why. But I do agree that it would be very impractical if that is considered processing of personal data. I added an example from the Washington Post So you have to pay $9/month for a GDPR compliant subscription. Because the price you have to pay is not unacceptable high, I think it would be valid to offer the premium version this way. This does not force you to choose one of the other subscriptions. In december 2018, the Austrian DPA (DSB) has confirmed that a similar offer is lawful. On derstandard.at you get a choice between free access with tracking and advertising, or pay 6 Euro/Month for tracking free access. Because 6 Euro/Month is cheaper than subscribing to the printed edition, the DSB accepted that as a valid choice. More information can be found on noyb.eu or, (with more details but in German), on wbs-law.de. | I'll quote from my answer on a similar question from Programmers.SE: ...[T]he Github TOS have this to say about material hosted on their site: By setting your repositories to be viewed publicly, you agree to allow others to view and fork your repositories. Hosting on Github means that the author grants others the right to "view" and to "fork" the repository. Here, "fork" probably just means "use Github's fork feature", which creates a repository clone, hosted on Github. GitHub's use of "fork" here probably refers to the software feature of the website github.com called "Fork," which allows users to create a verbatim copy of a repository on github.com. The TOS do not require the author to grant any other specific rights, like the right to prepare derivative works or to redistribute copies of the work, so "fork" here probably is not used the general sense of "produce a derivative work." Thus, the code's presence on GitHub does not grant you rights to reuse the work in ways protected by copyright (commercial or otherwise) without a explicit license from the author. |
Is accepting to receive emails as part of user terms legal in GDPR? If I run a webshop selling DVDs, could I put in my user terms (that you have to accept to register) that I will be sending you emails about other movies on a regular interval. Would this qualify as legitimate interest? So, if you don't want emails then you shouldn't register and buy my DVDs. Is that legal? Or does the user need an option to opt out if the user disagrees about the legitimate interest? | No. You have to ask for specific permission to send marketing emails, and can't make it a condition of making a purchase since marketing emails are clearly not necessary for that. When accepting the terms you need a separate tick box for marketing emails, and it must be unticked by default (opt-in). | The GDPR only mentions cookies once (Recital 30). (It says that cookies are personal data if they are associated with natural persons.) As far as cookies go, nothing has really changed since 2002, and the exception granted in the EU cookie directive Article 5(3) is still valid: This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service. If your site complies with the 2002 directive today, it will be GDPR compliant. All the "EU Cookie Law Compliance" plugins I've checked out let the admin configure the site to comply with the 2002 directive, and most let you choose between implicit consent (which is, and still will be, OK if you or third party services do not use cookies for profiling or to collect personal data), soft consent, or hard consent. The latter is however mandatory if you or third party services use cookies to for profiling or to collect personal data. However, if at least one of your cookies are used for profiling (and if you use Google analytics, you are), or if they are used to collect personal data, the exception from explicit consent quoted above does not apply and implicit consent (i.e.: "continued use of the site amounts to implicit consent to the use of cookies") has never been legal for the site. So while nothing has changed since 2002, there is a lot of misinformation about cookies floating on the Internet, and a lot of sites have their cookie banners set up wrong. You may want to do a new cookie audit for your site to verify that you comply with existing legislation. | The GDPR's right to erasure is not absolute. Simplifying things a bit, you only have this right if the legal basis for processing was consent, because consent can be revoked freely; or the legal basis for processing was legitimate interest and the controller does not have an overwhelming legitimate interest in keeping the data. Legitimate interest always requires that the controller's legitimate interest and the data subject's rights and interests are balanced. A request for erasure shifts this balance but does not decide it. In practice, a request for erasure may be denied if the controller has legal obligations to keep this data, for example financial records; or the continued processing of this data is necessary for performance of a contract; or the controller has an overriding legitimate interest in continued process of the data. Note that contracts may have effects that survive termination of the contract. Note also that a contract might not involve the data subject as a party to the contract, the classic example being a postal delivery contract that necessarily requires processing of the recipient's personal data. In your specific example it seems that the legal basis was legitimate interest and that the data controller has an overwhelming legitimate interest to hold on to parts of your data for the purpose of fraud prevention. If you feel like the continued processing of the data is illegal, for example because the legitimate interest balancing was done incorrectly, or because the legal basis was consent, then you have the following remedies: You can lodge a complaint with the responsible supervisory authority. You can sue the controller before a responsible court for compliance, and for the (actual) damages that you suffered as a result from illegal processing. I'll point out that neither of these approaches is likely to work for you, because abuse/fraud prevention appears like a pretty standard case of overwhelming legitimate interest. | The material scope of the GDPR (Article 2) is limited to the processing of personal data (including mere storage) by automated means or as part of a filing system. The question of whether your activity falls within this scope hinges on what you actually do with the data once you take possession of it. You have mentioned saving the contact information of people you have met at conferences, which could refer to simply retaining it for later use, or to the technological process of storing data in a computer. The former, if not done in any structured way (a filing system) would not fall within the scope of the GDPR. The latter, even if poorly executed, such as a photo stored on a business smartphone or a text document thrown onto your workstation's desktop, would always fall within scope as computerised data is processed "by automated means". When the contact information you receive identifies a specific person, as distinct from just a corporate switchboard number and company name for example, it is personal data. When you get that personal data from the person it identifies (data subject), and you're otherwise in scope, Article 13 is invoked, requiring you to provide a list of information, "at the time when personal data are obtained", unless "the data subject already has the information." This is known as the right to be informed. The requirements differ when personal data are not obtained directly from the data subject. I would argue it is unreasonable to be expected to provide the information to the data subject over a cup of coffee or in a quick business card exchange, but if you start entering it into a spreadsheet or your CRM, you need to provide the required information, which may be as simple as a follow-up email thanking them for their time and letting them know you'll keep their contact details on file, along with a link to your organisation's privacy policy, assuming it covers this use, or if not, a specific privacy notice. You will of course be required to comply with other requirements such as the principles of data minimisation and identify a lawful basis, maintain adequate security by implementing technical and organisational measures, hold contracts with any third parties who process personal data on your behalf, and have a process for upholding data subject rights and responding to requests to exercise them - among others - but you should already be doing that for your other processing activities unless exempt. Additional information Edits have been made as clarifications and questions were forthcoming. Email marketing You need to consider the applicable country's implementation of Directive 2002/58/EC as amended ("ePrivacy Directive"). For example, in the UK you could send such messages without consent to contacts at incorporated companies or public sector bodies, but would have required consent for sole traders, private individuals, or partners in an unincorporated partnership. In Ireland, you have an exemption to consent for existing customers who were offered the opportunity to opt out when their email address was collected, but must use the email address for marketing within 12 months. Each EU country will have a different implementation of the Directive. In the Netherlands, Article 17 of the Telecommunications Act implements Directive 2003/58/EC and thus provisions for direct marketing by email. Processing by automated means Processing by automated means refers to processing of personal data in electronic, rather than manual form. All electronic processing is within the material scope of the GDPR, while only manual processing that forms or is intended to form part of a filing system is. Recital 15: The protection of natural persons should apply to the processing of personal data by automated means, as well as to manual processing, if the personal data are contained or are intended to be contained in a filing system. Art. 4(2): ‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means ICO guidance What is personal data?: The GDPR covers the processing of personal data in two ways: personal data processed wholly or partly by automated means (that is, information in electronic form); and personal data processed in a non-automated manner which forms part of, or is intended to form part of, a ‘filing system’ (that is, manual information in a filing system). | You could certainly allow twitter to delete the exchange, unless it is part of some record that the law in the relevant country require to be retained, which would be quite unusual. That would depend on the nature of the exchange, and the particular law requiring that records be retained. However, if the request is to be able to demand that Twitter delete the exchange, that would be much harder. In general a person or business is entitled to retain copies of communications, such as emails, sent to that person or entity. There is the "right to be forgotten" which applies under EU law, but that would not apply to records which a business needed to retain for its own legitimate purposes, and was not posting publicly, as I understand it. In any case Twitter is not an EU business, so I am not sure if the right would apply at all. (Twitter has an office in Amsterdam, so teh GDPR and other EU law clearly applies to it.) There might be some other basis on which such a demand could be made, depending on the detailed circumstances and the specific jurisdiction, but I cannot think of one offhand. | I'm not aware of any cases on point, but as a rule legal fig-leaves don't play well in court. If the webmaster simply puts up a banner saying that EU residents are not permitted but takes no other action to exclude them, then that is going to be considered irrelevant. The webmaster is still very likely required to comply with the GDPR. On the other hand if the webmaster takes other steps to exclude EU residents, such as using a geolocation service to block connections known to be in the EU, validating email addresses and blocking those from EU domains, and ejecting anyone who mentions that their residence is in the EU, then that is more likely to be seen as a good-faith attempt to avoid being subject to the GDPR. It will also have the practical effect of greatly reducing the number of actual EU residents. All these controls can be evaded, but it would be much harder for any data subjects to claim that they acted in good faith or that the webmaster acted in bad faith. Note that validating an email address or logging an IP is itself processing of personal data, so anyone implementing such a system still can't ignore the GDPR completely, but it would greatly limit the scope and make it easy to delete any such data after a short time. (Note: the term "EU resident" above is an approximation of the territorial scope). | Caution: I am not a lawyer. It depends on who is doing the collecting and storing. If it is done "by a natural person in the course of a purely personal or household activity", then it is exempt from the GDPR, as per Art. 2. Beware, however, that "purely personal activity" means that you do not share or publish them. In this court case, having the name or phone number of someone else on your "personal" website constitutes "processing of personal data wholly or partly by automatic means within the meaning of Article 3(1) of Directive 95/46". | “From your perspective you should not worry about asking permission to use reCaptcha as it is not you who is processing the data it is google and any GDPR compliance falls on them.“ This is plain wrong. If a user visits your website you are the controller of data collected on your website. Regardless of what entity collects that data. However in my non-legal opinion reCAPTCHA falls under Article 6 section 1d and 1f. Also Recital 49. 1d: “processing is necessary in order to protect the vital interests of the data subject or of another natural person;” While you could argue in some cases (most probably) reCAPTCHA is used to reduce spam to a business entity thus not a “natural person”. 1f: “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.” Here is where the real ruling applies “Legitimate interests”. You as a business have a legitimate interest in reducing spam into your business. Not only does spam take up your time but it also takes up your resources. As to the extent in which spam takes up is dependent on the usage in question. But nearly everyone can safely assume reducing spam (one of the cornerstones of the GDPR) is a legitimate interest. Recital 49 (excerpt): The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, […] by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. |
Question about NDA Term I am currently reviewing our company's NDA templates and came across the following term: This Agreement shall remain effective for six (6) months from the Effective Date. All obligations of the Recipient with respect to the use and disclosure of Confidential Information hereunder shall terminate three (3) years from the Effective Date. If I'm reading this right, it is saying that the NDA is binding for 3 years after the date it is signed. But how does the first part, "This Agreement shall remain effective for six (6) months from the Effective Date." apply in lieu of the second part? | It means that the agreement lasts for 6 months under which confidential information (CI) provided must be kept secret for 3 years. So lets say you signed this agreement on January 1, 2018. Any CI materials provided between Jan-1 2018 to Jun-30 2018 must be kept confidential up until January 1, 2021 (3 years from the effective date). However if you received a CI material on July 1, 2018 the NDA would have expired and you would not be obligated to keep it confidential at all. These types of short-term NDA's require careful oversight because it is easy to forget that the NDA has expired and start providing CI to third parties not obligated to keep them confidential because the NDA expired. So, in short, it means that anything provided as CI during the 6-month term of the NDA must be kept confidential for 3 years. After 6 months the NDA is no longer in effect and care must be taken in exchange of CI to third parties. | None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields. | In the US, code that you write in the course of employment is the property of your employer. Otherwise, anything that you create is your property. The gray area is things that you write during your employment but not in the course of your employment (hence the terms of the employment contract are vital). Something that you write before becoming an employee is not "in the course of employment". However, if you use that code in the in the course of employment, you invite the argument that in fact the code was written in the course of employment. That argument can be squelched if you have an agreement with the employer that acknowledges that you are licensing your code to the employer in exchange for ... some consideration. It could be $1, or a similar unit of currency. | Can he/lawyer try to use the payment to me as leverage, for example, offer to give me that payment only if I agree to sign a non-compete or other document? The employer ultimately ought to comply with the written agreements between you two. The employer is not allowed to belatedly impose conditions that alter (to your detriment) the contract(s), let alone when you are no longer his employee. The clause "You will be paid on X and Y when/if they close" does not reflect whatsoever that payment is contingent on your acceptance of a non-compete agreement. Your description does not reflect any legal merits that would justify your employer to further withhold the compensation to which you are entitled pursuant to the deal/sale that got closed. The employer and his lawyer are just being vexatious. | The company continues to own all its assets australia The appointment of a liquidator to does not change what the company owns - it just changes who is in control (the liquidator rather than the directors) and the purpose for which it is being run (realisation of assets for the benefit of creditors rather than as a going concern for the benefit of shareholders). The laptop still belongs to the company. The liquidator's job is to sell all commercially realisable assets and distribute the proceeds to the creditors. When they have done that (which can take years), they get a release from the court, and the company is deregistered 3 months later. Any assets of a deregistered company belong to the shareholders. A 3-year-old laptop is not a commercially realisable asset, so it's not something a liquidator would be interested in. You could tell the liquidator you have it, and they are welcome to collect it at any reasonable time. They will probably say, "keep it." | The "Severance Agreement" is a contract between the company and you. It spells out what the company will do and probably what they expect you to do going forward. Simple enough. The statement you referenced merely says that you are not being forced to sign the agreement. That's all. You don't, presumably, have the option of remaining employed at this company but you DO NOT have to sign this agreement. But if you don't, it's likely that any benefits being promised in the agreement will not be delivered to you. So specifically in answer to your questions: It protects them against a claim that they somehow forced you to sign the agreement. Likely anything that the agreement says the company will do such as pay you a certain amount of money and the like. Bottom line is that if you don't like the agreement, don't sign it. If you want the benefits they are promising in the agreement, then sign it and move on. | Inferring from the question, it appears that: The tenancy is an Assured Shorthold Tenancy. The tenancy agreement started on 16 December 2014. The initial fixed term was for 12 months. (Please comment below if any of this is incorrect). A Section 21 order gives notice that, unless the tenant leaves by the date given in the document, the landlord will begin legal proceedings against the tenant, in order to obtain a court order forcing the tenant to leave. To answer the OP's questions: Does it mean that she wants to use her right to cancel the contract after 2 months? It looks like that to me but I am not 100% sure. Yes - but if this is before the end of the fixed term (which I'm assuming is 15 December) there must be a clause in the tenancy agreement (normally called a "break clause") allowing the fixed term to be terminated early. If there is no break clause, then you cannot be asked to leave before the end of the fixed term. What does it mean "after 16/11/2015"? After can mean anything... even end of contract in December. Yes. The landlord would like you to leave before the date shown - but if you don't, the landlord can begin legal proceedings any time after that. Is this a legal document or just something she made up? It is a legal document. Section 21 of the Housing Act 1988 allows a landlord to ask a tenant to leave without having to give a reason. The landlord must meet certain conditions in order for the notice to be valid. What happens if I want to leave the house later because I don't find alternative? You'll need to discuss that with the landlord. However, if you don't leave by the end of the fixed term, you are entitled to stay (and pay rent!) until a court (not the landlord) orders your eviction. EDIT: This website goes into a lot more detail about the whole Section 21 procedure. | The old terms apply ... ... until the landlord gives notice and ends the lease - then the tenant has to get out. This is not inconsistent with the requirement to “execute all revised rental agreements upon request” - unless and until new terms have been agreed, there are no “revised rental agreements”, once there are, the tenant can be requested to (and must) execute them. There seems to be a misapprehension that this term gives the landlord a unilateral right to change the terms - it doesn’t. However, if the landlord wanted to formalize the month-to-month arrangement that is created under the old lease with new documents (or any other mutually agreed arrangement), then the tenant is obliged to sign it. |
Can I refuse to answer a question asked by US Census taker by invoking the 5th Amendment? Refusal to answer census questions is covered under 13 USC Sec 221, providing for a fine of no more than 100.00; that acknowledged, can a person elect to refuse to answer a specific question because he believes it may tend to incriminate? Background: The 2020 US census is proposing to ask 'Are you a US Citizen? In and of itself that might be considered to be a innocent question, but given the political climate a respondent could easily assume that the information is being gathered (or shared with) the Justice Department and/or Immigration Control for the purpose of identifying and locating non-documented residents. Regardless of an assertion that census data is not supposed to be used in a legal proceeding against the respondent, that respondent has no reason to believe that his answer would never used in that fashion.... consequently his conviction that the information MAY used against him. IANAL, so .... thoughts | An existing law actually prohibits using census data "against" a person, see this recent question. The 5th Amendment ("nor shall be compelled in any criminal case to be a witness against himself") is not interpreted to imply an absolute privilege to not answer, it means that your answer cannot be used against you in a criminal case. You can be compelled to testify "against yourself" if you are granted immunity from prosecution. | The GDPR allows the right to access to be limited if this access would “adversely affect the rights and freedoms of others” (Art 15(4) GDPR). However, access to the recording would not give you more information than you've already received during the phone call, so this exemption is quite unlikely to apply in any case. UK data protection law also has a large list of additional exceptions, as summarized here by ICO guidance. These exemptions also cover some aspects of trade secrets, and even mention insurance examples. However, not such exemption is likely to apply in your case: the recording would not give you more information than you already have. If the data controller is concerned about some parts of the conversation, they should provide a redacted copy and explain why the redactions were performed. They should not reject the request outright. If the data controller wants to reject the request entirely, they must do so within the time frame for the DSAR (one month), must explain their reasons, and must inform you that you're allowed to lodge a complaint with your supervisory authority or to sue them. However, ICO guidance is flexible on how detailed the reason for refusal can be: Where an exemption applies, the reasons you give to an individual for not complying with a request may depend upon the particular case. For example, if telling an individual that you have applied a particular exemption would prejudice the purpose of that exemption, your response may be more general. However, where possible, you should be transparent about your reasons for withholding information. Here, I don't see any reason why full transparency would be a problem, so I would expect that the data controller can point to a specific exemption in UK data protection law. If you are unsatisfied with the data controller's response, please consider lodging a complaint with the supervisory authority. In the UK, this is the ICO. On the ICO complaints page, you can fill out the online form about “your personal information concerns”. | The protection lies in the fact that these sorts of restrictions are expressed in state laws, and states are Constitutionally forbidden from denying to any citizen the equal protection of the law, or from interfering with religion. The First Amendment, as applied to the states through the Fourteenth Amendment, forbids states from making any law impeding free exercise of religion, or having the effect of establishing a state religion. This means that any law that forbids people of any religious denomination (including atheists) from holding any office (elected or not) under any level of government is unconstitutional. See Torcaso v. Watkins. Moreover, Title VII's protected classes are also (with the exception of sex) suspect classes under the Equal Protection Clause. A state or local government may not pass a law discriminating against a suspect class unless it is a narrowly tailored law which is the least intrusive way to achieve a compelling state interest. In practice, that means a state can't pass a law discriminating on the grounds of national origin, race, or religion. Sex is a quasi-suspect class; government discrimination on the grounds of sex must further an important state interest in a way reasonably related to that interest; again, in practice this will tend to rule out laws saying "no women can be elected to this post." The Americans with Disabilities Act actually does not exclude elected officials. It defines "employee" as "an individual employed by an employer." The Equal Pay Act doesn't apply to elected officials, but again, sex is a quasi-suspect class. The Age Discrimination in Employment Act also excludes elected officials, and this is the one case where a state really could discriminate -- the applicable test is whether the law is rationally related to a legitimate state interest, which is not an especially high bar. | If you falsely claim to be a US citizen in order to obtain work, vote in a US election, or receive public benefits in the United States, you can be deported, lose a green card, or be banned from ever obtaining a green card or US Visa. See https://dyanwilliamslaw.com/2015/02/why-lying-about-being-a-u-s-citizen-can-stop-you-from-becoming-a-permanent-resident-and-what-you-can-do-to-overcome-this-obstacle/ and https://www.nolo.com/legal-encyclopedia/how-falsely-claiming-us-citizen-can-deportable.html for more detail. This very much includes checking an incorrect box on an I-9 form when obtaining a job, although that is not usually considered a "benefit". In fact incorrect I-9 statements are a common source of such bans. However, if a person lies in response to a merely curious question, when no government or private benefit, and no job eligibility is involved, the ban should not, as far as I can see, come into effect, nor should that be grounds for deportation, or indeed any criminal or immigration action. If a person falsely claims to be a US Citizen merely to obtain social status or personal importance or reputation, that would seem not to be a crime under the doctrine of U.S. v. Alvarez, nor should it lead directly to any immigration consequences, althoguh I suppose it might draw attention to someone who is deportable on other grounds. | This is controlled by 8 U.S.C. § 1401 which details who qualifies for "birthright citizenship". Including of course the condition mandated by the 14th ammendment, Congress is otherwise free to bestow such citizenship essentially as it pleases by duly enacted legislation. One of the cases that receives birthright citizenship is a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States. So the presumption for young children found in the US is that they are citizens by birth. The law in particular requires positive proof that the individual in question was definitely not born in the United States. Lacking this, or it failing to be found prior to reaching the age of 21 years, they are citizens. For other cases, this will likely end up falling to the courts, who will decide the matter on the preponderance of the evidence. In this case it becomes the burden of the individual claiming citizenship to establish that they are a citizen*. Birth certificates can be filed after birth, and can be submitted as evidence. The laws controlling the validity of birth certificates is locally determined. If there are other birth certificates from other countries, or conflicting witness testimony, then it will fall to the court to decide which case is more likely based on the evidence available. *More accurately the burden generally falls on the entity making the claim about someone's citizenship (their own or someone else's). In a deportation hearing, for example, it falls to the government to establish the individual is not a US citizen. Deporation only applies to aliens, so the defendant must be established as such. | The default rule is that a landlord can refuse to rent to anyone for any reason, in which case the landlord can refuse to rent in this case. There are civil rights laws that limit this discretion in the case, for example, of discrimination based on race, or family status. But, those laws often have exemptions for owners of small amounts of property (e.g. a unit in their own home), which can't easily be determined from the question. If a civil rights law applies, the landlord must choose among potential renters on a non-discriminatory basis - the landlord doesn't have to rent to anyone in particular, but can't use the prohibited reasons to make the choice. If the default rule does not apply because a civil rights law unrelated to immigration bars discrimination against a tenant, someone's undocumented immigrant status probably doesn't provide an absolute defense to the civil rights law, but might be one factor among many that a landlord could consider in choosing among available tenants in much the same way that credit ratings, income, and a prospective tenant's criminal record, and other factors might be considered. | The IRS requires taxpayers to swear under "penalties of perjury" to their statements and figures given concerning their income. Since obviously this constitutes a potential incrimination The privilege against self-incrimination applies to giving testimony that reveals that you have committed a crime, not to doing something prospectively in a way that does not violate criminal laws. The solution is that you may truthfully report the amount of income that you have on your tax return. Ordinarily, the information that you had a certain amount of income, without a specific description of its source, would not in and of itself be incriminating. So, it is not "obvious that this constitutes potential incrimination[.]", at least in the general case. There might be some circumstance in which merely filling out the information on a tax return required by law and signing it under penalty of perjury would be incriminating, although this is far more narrow that your question suggests. In those circumstances, the solution would be to file an unsigned tax return accompanied by a disclaimer stating that you are not signing it under penalty of perjury as it would be potentially incriminating for you to do so would on a signed and attached explanation that explicitly claims the 5th Amendment privilege. There is actually an IRS form for doing that or similar things on: IRS Form 8275. This would result in serious civil tax penalties, but would probably protect you from a criminal tax law violation (at least for the failure to file offense, not necessarily from the failure to pay offense). | The 5th amendment protects you from self-incrimination. If by possessing a firearm you are in violation of the law you cannot be compelled by law to reveal this information. If the police discover you have a gun in violation of the law you can be arrested and prosecuted for that offense. They cannot additionally prosecute you for not telling them about a gun. I thought there was a supreme court case about this specific situation, but the closest I can find for now is Haynes v. United States. The 7-1 majority held that people prohibited from possessing firearms cannot be compelled to register their firearms that they are possessing illegally. They are stopped by the police and asked this question. They answer truthfully. Then they can be arrested and prosecuted for the illegal possession of the gun. How does this square with the right not to self-incriminate? Or is asking the question considered to be a search? Police can generally ask whatever they want. If you choose to waive your 5th amendment rights, that's your mistake. Can the state prosecute this person for carrying the illegal weapon? The state can generally prosecute crimes it knows about. So yes, in this case they can. Suppose that next to the weapon a stash of illegal drugs is discovered, which was only found due to the action taken to secure the weapon. Can the state prosecute for that? The state can generally prosecute additional crimes it uncovers during investigations or other lawful actions. So yes, this can be prosecuted. |
Does money make it easier to become a naturalized US citizen? I'm family friends with some undocumented immigrants, one of whom is a DACA recipient. With everything the Trump administration and Republicans have been doing it's made me pretty angry and honestly pretty fearful for my friends. I'm sure that the DACA recipient has been waiting patiently for Congress to offer a natural path to citizenship, but who knows how long that will really take. From my perspective, as a friend and US citizen, I'm wondering if there are any ways I can help move along the process on this individual's behalf. This family does not have a lot of money, but I do have some disposable income, and I would be willing to pay any fees (up to a certain amount). But I don't know if that willingness really makes a difference, or if there are inherent limitations to the system that no amount of money can solve. If I wanted to "sponsor" my friend in a monetary sense, would it make a difference? Are there any risks? And how would I even start down that path... of helping this person initiate / complete the naturalization process? | Whether or not you are a DACA recipient, if you are in the US illegally, the path to citizenship is very narrow, and money will be of little use. It could be used to pay for an attorney who could represent a person that was already qualified, but cannot create qualification. A person might petition for "cancellation of removal" if they have lived in the US continuously for at least 10 years, are of "good moral character", have not been convicted of a crime and show that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is U.S. citizen or legal permanent resident". However, there are caps on the number of such cancellations that can be issued (4,000 annually). Also, you don't "apply" for non-LPR cancellation, you petition for it as a defense when you are being deported. If a person is not illegally present, money could help in obtaining an EB-5 visa, where a person invests in a job-creating enterprise that hires at least 10 people, investing a minimum of $500,000 for "targeted" areas or $1M otherwise. | Yes Companies can own companies - that’s what subsidiaries are. On a practical level, you know this is true because you actually have an example. Companies House would not have allowed its registration (barring error) if it was illegal. Why can’t it open a bank account? Banks (or any other business) can choose who they will and won’t do business with. Unless it’s discrimination on the basis of a protected characteristic, it’s not illegal. Since juridical persons don’t have protected characteristics (apart from nationality) it’s virtually impossible to illegally discriminate against them. | First of all, if your Delaware LLC earns money, you will pay tax in America on that money. America still taxes "foreigners" on American income, just not on"global" income. That is, unless the U.S. has a tax reciprocity treaty with your home country, Malaysia. I don't know about Malaysian law, but I am writing as an American about American law regarding the Seychelles (and I am not a lawyer). The following is only as an "example." If you set up an LLC in the Seychelles, you could, in theory, avoid American tax by accruing income there. In practice, if you did nothing but "banking" in the Seychelles, America would look at your lack of "value added" there, and could tax you on Seychelles income as if your corporation was American. The way to make such a claim stick (typically in a place like Ireland), is to set up a manufacturing or operating facility (e.g. call center) there so that you were shipping goods or services from your offshore operation. Then you'd have a strong claim in America that your operation actually earned most of its income abroad, and the U.S. company was just a holding company. | will these assets be considered as income by the IRS, even though the account money predates her becoming a US person? No. Even if there was no income, is it possible that the person still had to pay other taxes related to foreign assets (i.e. does the IRS tax assets, not only income? There are fines related to failure to disclose foreign bank accounts which are quite draconian. The fines are high out of concerns about money laundering and terrorism funding, without a legislative, IRS or judicial recognition that these issues can arise in far less nefarious circumstances. But the fines are not truly taxes. They are fines for failure to file an information tax return or make a disclosure that is required by statute. If the disclosure had been made in a timely manner, there would have been no actual tax due and it is not illegal to have the accounts, so long as they are disclosed. Resolving an irregularity of this kind is quite tricky, can go very badly if done incorrectly (e.g. hundreds of thousands of dollars of civil tax fines or worse and possible impairment of immigration status), and calls for specialist international tax administration counsel. I've encountered a case like this in my own practice and referred it out to specialist counsel rather than handling myself, even though I regularly handle less demanding international tax questions in my practice. This is a "brain surgery"/"rocket science" class difficulty problem as far as lawyer expertise requirements are concerned. | It is legal, unless the laws of that state say otherwise. Governments are allowed to charge different tuitions to residents vs. non-residents. They can also require proof of residence (not just your say-so). Being physically present in a state for a couple of years is not proof of being a resident. That doesn't mean that the interrogation that you are getting is allowed by law, but it's at least consistent with the general pattern of out of state tuition laws in the US. If you have contradictory elements of "proof" (voter registration in another state), they can demand more evidence. It really depends on what the state laws are, so you could name the state. Also, the full financial disclosure may in fact not be related to tuition rates but to financial aid, where they can demand all sorts of things by way of proof. | I'm assuming it would NOT be a good idea to just accept the funding as a person (sole proprietorship). Correct. Would the time be right to form the LLC first, before starting the campaigns on the crowdfunding sites? Or would it be permissible for the entity to be formed IF and once the funding is available? For instance, if the campaign on Kickstarter raises 800 thousand dollars, can an LLC then be created, a bank account opened, and the funds deposited there? Or must the entity be created prior to the asking for startup funds? An entity should be (really must be) formed before funds are raised. This is not a hugely expensive thing to do. For a lawyer drafted one, you are talking on the order of $500-$2000, plus some state filing fees which are modest. I know it's kind of a chicken-and-egg situation, but there isn't a lot of funds available yet for hiring attorneys and drawing up papers before the money is raised. Or should this be something for just forming a very quick LLC and then worrying about the right entity after the funds come in? If you can't afford the money necessary to hire a lawyer to form an entity without crowdfunding, you aren't ready to open a manufacturing company. You really shouldn't consider trying to start a project of this magnitude unless you have at least several tens of thousands of dollars of personal funds on hand prior to the crowdfunding effort. You should also have a detailed business plan in place with fact checked budget lines and reality checked revenues estimates before stating your campaign. If you plan to have patents, you need to at least begin the process of applying to protect them legally, with pre-campaign funds too. Realistically, most people at your stage do a small round of friends and family and personal savings fundraising and often also find an angel investor or two, before going to the general public in a crowdfunding effort. If you can't convince those people that your project is worth investing in, you are probably not ready to run a manufacturing company which will require you to successfully make many similarly difficult pitches to a variety of people. What legal entity(s) would be best for startup funded by kickstarter or other investment? At the state law level a C-corporation and an S-corporation are the same. The distinction is made with a separate tax filing with the IRS in S-corporations. Crowd funding is a term that is often ambiguous and can be used in a multitude of contexts. If it is more than a gift (i.e. in exchange for stock or bonds) there are also securities regulations exceptions that the offering must be tailored to. If the funds are donations for a charitable project, a non-profit corporation would usually be the right choice and 501(c)(3) status needs to be obtained in advance. If funds are raised in exchange for equity interests or non-U.S. citizens/permanent residents own some of the interests, a C corporation would usually be the only permitted choice. If the funds are raised in exchange for interest paying loans/bonds, or the funds are non-tax deductible gifts rather than investments, then financing isn't a concern for choice of entity, and either an LLC or an S-corporation is usually preferred (or perhaps a limited liability limited partnership in lieu of an LLC which has a different control structure). If funds are raised for an operating business with assets that are leased or tend to depreciate in value and has less than 75 owners, and has owners who are also senior employees of the company, an S corporation will usually be the best choice. If funds are raised for a business that will hold assets expected to appreciate in value, or has a financing or control structure more complex than equal shares of common stock plus bonds, an LLC will usually be preferred. Assuming someone is going to start a business that is to design, build and manufacture a small electronic handheld device. A C-corporation or S-corporation rather than an LLC or LLLP is probably preferred for a venture like this one, with the tax classification dependent upon the means of financing and the nature of the owners. Usually, you would use an S-corporation if possible, and a C-corporation if not. A two entity structure, with an LLC owning the IP (if any, other than a trademark for the products), and then licensing it to an S-corporation operating company, would also often make sense in this scenario. I live in Texas, but I assume that the business entity would or could be formed in Nevada or Delaware or anywhere there are more favorable conditions. Not really. A Texas entity would be just fine in this context. A Delaware entity has higher registration fees and legal fees to prepare one, and the advantages it provides for big businesses will often be disadvantages in the kind of entity you are considering. The benefits of Nevada and Alaska trusts are much greater than the benefits of Nevada and Alaska corporations or LLCs. Also, the Texas entity may be more suited to addressing Texas community property issues. | Assuming, for purposes of argument, that such a change could be made by executive order, or indeed by legislation, rather than by amendment, yes, the change could and would have to have an effective date, and apply only to persons born after that date. Indeed that would still be true if such a change were made by constitutional amendment. Consider, people whose parents (or one of whose parents) are US citizens, but who are born outside of the US, are or may become citizens (by statute), but only if the citizen parent complies with certain rules specifying a minimum period of residence in the US, and other conditions. Those periods and conditions have changed over the years, and each such change had an effective date. If such a change could be made but could not be made with an effective date, then it would apply retroactively, and deprive people who are already citizens of their citizenship. There is no valid equal protection claim, because the same rules apply to both individuals, they merely give different results for the different birth dates. (See my answer to this question for why I do not think such a change would be valid except by Constitutional Amendment.) EDIT: I suppose such a changed interpretation, if made at all, might take the position that such births never did validly convey citizen ship, and all people whose parents were not validly in the country had never been citizens. That strikes me as even less likely to pass judicial review, but one cannot know what the Supreme Court will do when faced with a truly novel situation. | The transaction you describe is a "taxable gift" to the extent that it exceeds $15,000 in fair market value (as of 2019) and that your significant other is not your U.S. citizen spouse now (special rules apply to non-U.S. citizen spouses and an unlimited amount of gifts can be made without being taxable to a spouse, including a same sex spouse). The first $15,000 of fair market value per donor per donee per year doesn't count, however (there is a $100,000 of fair market value per donor per donee exemption per year for gifts to non-citizen spouses, if a qualified domestic trust is not the true recipient of the gift). This means that the donor is required to report the gift on IRS Form 709 by April 15, of the year following the year in which the gift is made (or later if the donor files for an extension). But, each person is entitled to make up to $11,400,000 of tax free gifts (during life and at death combined) that would otherwise be taxable per lifetime, and this amount is indexed for inflation, so it goes up each year. So, in your situation, it is highly unlikely that any tax would actually be due in connection with your filing of Form 709, even though the donor is required to complete and file that form. In the event that both the annual and lifetime gift exclusions have been exceeded, the tax rate would be 40% of the fair market value of the gift (net of the mortgage debt to which the house is subject. For example, if the house were worth $40,000,000 and had a $10,000,000 mortgage and you were given a 50% interest in it, the amount of the taxable gift would be $14,985,000 of which at least $3,485,000 would be subject to a 40% gift tax, i.e. $1,394,000), if you didn't get married (the tax would be $1,360,000 if you were a non-citizen spouse of the donor). At one time there were some states with their own state gift taxes that had to be considered, but as of 2019, there are no such states. Also, upon a sale of the house, the donee would be subject to one half of the capital gain that the donor would otherwise have owed taxes upon (this is called a "carry over basis"). We paid with a loan from a family member which I helped to pay back. I also paid for work done on the home. This could arguably reduce the amount of the gift (which would ordinarily be valued at fair market value as of the date of the gift), but given the amount of the lifetime exclusion, that detail is probably irrelevant unless your home is a world class mansion or castle. |
Ex wife moving out the country with my daughters My ex-wife is planning to move out of the country (to France) next year with my daughters (12 and 10 years old respectively). We have shared custody. I pay alimony (been paying for 7 years, 3 more to go) and child support. We have a good relationship in general. My questions: What can I do legally to prevent her from moving indefinitely to France? She says it will only be for 2 years but I do not believe it. I believe she's saying so just to not find opposition from my side. I might be OK with her moving for up to 2 years but not more than that. What are the implications in terms of Alimony if she moves out of the country for such a long period of time? What about implications to Child Support? I do not believe she will be living in France with a work permit. I believe she will be working on some kind of informal business. If I am right, and she won't be working "Legally" in France, what can I do here in the US to prevent her from taking my daughters considering the fact that she won't potentially have a better standard of living than the one she has here and the fact that she won't have a work permit to work in France? Can I take her to court and demand that she provides proof of a work permit and job contract? In general, what are my legal options, if any? Note: We live in New Jersey | Child custody (and alimony) are determined by state courts, so the exact details are state-dependent. There is no legal basis for a person preventing thrie former spouse from moving (assuming the host country doesn't deny a visa), but the courts would be involved in determining whether the child can be taken along: parent A cannot legally just pack up the kids and bolt. When parents don't agree, then the court must determine what outcome is in the best interest of the child. If the children want to move, that counts in favor of them moving ("counts in favor" does not mean "decides the matter"). If the moving parent doesn't have viable employment prospects abroad, that counts against them moving. The amount of time each parent spends with the children also matters, not to mention the laws of your state (here is what the California courts say: "Move-Away" Situations). Generally speaking, the moving parent has to provide notice, then the non-moving parent has to file a legal action to block the move. Your attorney will discuss all of the relevant considerations with you. The fact of a parent moving to another country does not per se invalidate court-ordered support, but the court can modify an order if circumstances warrant (there's no obvious reason why moving to France would result in modification of such an order). | The green card should always be at hand Yeah, he can't do that. He needs a green card in his possession anytime he's not on private property. Obviously for instance leaving it in the gym locker while you're at the gym is ok, but no, you can't dash off to the grocery store without it, on the logic that it's "just in town". Just like I can't make a milk run without my driver's license. So this idea of dashing off on a 400 mile adventure, is Right Out. He should have absolutely refused to travel without the documents in hand. If they say "get off the property or we'll call the cops", then tell the cops "I can't leave without my passport/green card" which the cops will back up, because they know the law and they know how trafficking works. The right to strut around the USA without any ID at all is reserved for US citizens only, and even that is being stripped away by ever-changing laws. Those documents are someone else's property The Green Card is the property of the USA and is not hers to steal. The passport is the property of the Philippine government and is not hers to steal. She didn't take your stuff, she took theirs. So she is guilty of a Federal crime, and the long arm of Philippine law may have an "opinion" on the matter also. Of course, most people don't think of it that way. They think your ID is your property so they think they're only messing with you. I would absolutely, positively report theft of the passport to the Philippine consulate. (Or rather, just report a missing passport, and be free about explaining the circumstances). One might hope that a phone call to consular staff might scare her straight, and get her to send it along. Most likely the green card would be in there also. Or, he could pay the fees to have a replacement passport issued. However the important one is the Green Card, since that establishes your right to be in the USA. On that one, you must consult an immigration lawyer and find out what you need to do. You certainly can get replacement green cards (not cheap), but admitting you don't have yours could cause you problems. People often seize documents for a reason And what makes me think that is, the uncle is a grown adult and the daughter's elder, and I thought that meant something in the Philippines. He is supposed to be more adult and more responsible. As such, he should be responsible for his own documents. Yet, this seems to be in the daughter's hands; this raises red flags. Maybe what she did was a harmless prank. But usually, taking an immigrant's documents is done for an entirely evil reason. Either they are forcing them into indentured servitude (also called "trafficking") - so if he is now in a situation where he is being extorted to do work in a worse situation or worse wage than he'd take willingly, then he is a trafficking victim, and the taking documents is part of the plot. The US has some legal protections for trafficking victims. Or they are "setting him up" for failure in some other way - for instance, out of idle malice, the niece might be planning to call immigration and report him as being illegal, hoping he'd be found with no green card, and deported for not having it. | Most employment in the US is "at will". That means that the employer or the employee can terminate the relationship without notice for any reason or for no reason. There are certain statutory protections that limit this, however, such as federal protections against discrimination on the basis of a protected characteristic. Arizona may have other protections. So the first thing you need to do (or your lawyer needs to do) is determine whether your employment was at will. If so, then it doesn't much matter if the reasons they gave you were lies, unless you can show that their actions constituted illegal discrimination. (If they lied about you to someone else, though, you might be able to go after them for libel or slander.) If your employment was not at will, then you may be able to challenge the reasons for the firing if the firing violated the conditions under which your employment could be terminated. Even if your employment was at will, your firing might fall under one of the exceptions listed in the Wikipedia article: public policy, implied contract, or good faith/fair dealing (although the article gives conflicting information about whether Arizona has an implied contract exception; the text says that it does not, but the map shows that it does). To analyze the facts of your case in connection with Arizona employment law, you really need to talk to a lawyer with a practice in Arizona employment law. The lawyer will want to review your contract or other written agreement, if there is one. | Not much. Consider the following: The father can not force the mother to abort the pregnancy. Ex post facto agreements of non-payment are, in all likelihood, unenforceable. The father will be obligated to pay child support under the laws of the state with jurisdiction over the paternity. The abortion angle won’t work. Setting aside commentary regarding the politics or ethics of abortion. I think we can agree it is a highly charged and emotional topic for some people. I point to the fact it always seems to be an issue during Supreme Court nominations and presidential elections. Given the explosive nature of the issue of whether abortions should be legal or not (in the case where the mother does not want to carry full term) could you imagine how much more dynamite it would add to the debate if the question were whether or not to allow the father to force the mother to terminate the pregnancy against the mother's wishes! One can only imagine how much more bombastic the abortion debate might then become. You can’t escape child support (most likely). To give you a sense of how difficult it is to escape the obligations of child support. Consider the following... A Kansas man was ordered to pay child support when he thought he was being a sperm donor only and signed numerous agreements with the lesbian couple he thought he was helping. In that case, the court justified its ruling on the grounds that a doctor was not involved in the insemination process. But nothing prevents future courts from making the same ruling in cases where a doctor is involved in the insemination process. Especially if that state either withdraws from the The Uniform Parentage Act, amends it, repeals it, or never adopts it in the first place. Sperm Donors and Child Support: Even in cases in which the donor is known, but holds himself out as unknown, some courts have held the donor legally obligated to pay child support. Read more here. Ex post facto agreements are problematic. Now that you've edited the question, the above link is even more useful for providing a possible avenue to try (albeit unlikely to work): a non-payment agreement. The discussion in that link describes that even if you could somehow convince the mother to go along with it, it is unlikely (though not impossible) to be enforced by the courts. It depends on the facts (e.g., intercourse vs. in vitro), circumstances (e.g., relationship vs. no relationship between the parties), timing (e.g., before vs. after the agreement), etc. of the impregnation itself. Notwithstanding all the above, if you still have questions, you might consider floating an idea of an approach you think you might try (in a separate question) and get reactions to that specific proposal. | It seems self-evident the spouse who gave up their career to keep the home and raise the children will not post-divorce be in an equivalent position employment-wise (A) as if they had not given up their career or (B) to the spouse who continued their career. england-and-wales The law doesn't mandate a 50-50 split although there is a widespread perception it does. The Matrimonial Causes Act 1973 (as amended) is current law. It says of a court making property orders, financial provision orders etc: s25 (1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 [F124, 24A [F125, 24B or 24E]] above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen. (2) As regards the exercise of the powers of the court under section 23(1)( a ), ( b ) or ( c ), 24 [F126 , 24A [F127, 24B or 24E]] above in relation to a party to the marriage, the court shall in particular have regard to the following matters— (a)the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; (b)the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c)the standard of living enjoyed by the family before the breakdown of the marriage; (d)the age of each party to the marriage and the duration of the marriage; (e)any physical or mental disability of either of the parties to the marriage; (f)the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; (g)the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; (h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit F128 . . . which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. (3) As regards the exercise of the powers of the court under section 23(1)( d ), ( e ) or ( f ), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters— (a)the financial needs of the child; (b)the income, earning capacity (if any), property and other financial resources of the child; (c)any physical or mental disability of the child; (d)the manner in which he was being and in which the parties to the marriage expected him to be educated or trained; (e) the considerations mentioned in relation to the parties to the marriage in paragraphs ( a ), ( b ), ( c ) and ( e ) of subsection (2) above. (4) As regards the exercise of the powers of the court under section 23(1)( d ), ( e ) or ( f ), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard— (a)to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility; (b)to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own; (c)to the liability of any other person to maintain the child.] In short the division of the matrimonial assets must depend on the circumstances of the case. The Lords in the House of Lords judgments White v White and Miller v Miller: McFarlane v McFarlane [2006] UKHL 24 supply some history, their observations of how divorce has changed over time, and of course their own rationales for their judgments. In White Lord Nicholls said there should be recognition of the non-financial contribution of the homemaker/child-raiser. In Miller: ... to greater or lesser extent every relationship of marriage gives rise to a relationship of interdependence. The parties share the roles of money-earner, home-maker and child-carer. Mutual dependence begets mutual obligations of support. When the marriage ends fairness requires that the assets of the parties should be divided primarily so as to make provision for the parties' housing and financial needs, taking into account a wide range of matters such as the parties' ages, their future earning capacity, the family's standard of living, and any disability of either party. The contemporary aim is fairness which is not necessarily the same as an equal share. There is a 'yardstick of equality' (from White) but it must be applied as an aid, not a rule. Miller v Miller makes the point that people will have different views about fairness and that views may change over time: Fairness is an elusive concept. It is an instinctive response to a given set of facts. Ultimately it is grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that in the present context there can be different views on the requirements of fairness in any particular case. | This is a tricky question on the intersection of visa and tax laws. It is tricky because every country can make its own rules that apply when you are in that country or do business in that country. Even within the EU, there is no uniform approach because freedom of movement merely covers the right to work in a country, but not the rules which have to be followed when doing so. Thus, you have to fall back to reading each individual country's rules and legislation. In general: Whether you are even allowed to work or which work activities are permitted depends on your visa or visa-free status. If you are a permanent resident or citizen of the UK, you can come to and work in every EEA country, until the end of the Brexit transition period, subject to the same rules as residents in that country. Often, visa-free visits or business visa allow some business activities such as attending meetings with clients or collecting information, but not performing actual work. If you're interested in what business activities the UK allows visitors from other countries to do, take a look at the visitor rules. Income tax may be due at the place of tax residency or where the income is generated/earned, in particular where you actually perform the work. There is a widespread belief that you only gain tax residency after staying in one country for 6 months, but this is misleading in the general case: every country makes its own rules, and income tax may be due even without (permanent) tax residency. The relevant countries (the country where you work and the country where you normally reside) might have a tax agreement that specifies where tax is due. Within the EU, it is fairly common that a person works in a different country than the one they reside in, so there is a well-developed network of tax treaties. Often, certain activities are exempt from local taxes, such as compensation for visiting researchers or regular employment. There's also a good chance that profit from independent work / business profits are only taxable at the place(s) where that enterprise has a permanent establishment – but it depends on the details. This section is based on the OECD model tax treaty (https://doi.org/10.1787/mtc_cond-2017-en) which most treaties follow closely. If no tax treaty exists that exempts your income from local taxation, you must consult the local tax laws. VAT rules are entirely different, and for B2B services are generally taxed at the location of the client (place of supply rules). But every country makes its own rules. Exception: within the EEA, cross-border B2B supply is always taxed at and by the client via the reverse-charge mechanism. So things can get quite tricky, and a business visitor should inform themselves beforehand what activities they are allowed to perform abroad and whether there are tax implications. is it any different from a UK author going travelling, taking lots and lots of notes, or even writing his/her next novel whilst in various locations, and publishing once returned to the UK? Here no tax implications arise because the travelling author is not paid during their travels, but they have to consider visa rules when performing their work. Such rules often have exemptions for artists. However, it depends on the rules of the travelled country. what basis does a government have for deciding "where" work was done? Each country is sovereign and can make its own rules. How would that apply if a team of software developers had a virtual "pair programming" session, with one in USA, one in UK, and one in the Far East ? "Where" has that software been written? It is not generally relevant where software was written, aside from copyright or export regulation issues which might have their own rules. Since each of the three programmers is working in their own country, no particular visa or income tax issues arise. However, if they have a common employer, the employer does have to consider the local employment laws regardless of where the employer is established, which may include paying some taxes in every country. | If an F-1 student in the US, gets married with a US citizen, how can he protect his money if a divorce happened in the future? Specifically if he has a plan to establish a company and run a business after he graduated, how can he keep all the rights and money/stuck/profit he will earn from his company and won't share it after a probable divorce? Should they wright something like "we promise we won't have any claims about each other's money after the divorce" before they get married? A prenuptial agreement is possible, and only an idiot or fool would draft one himself. An agreement drafted without legal representation would be highly likely to be invalidated in an effort to enforce it in the event of a divorce. Generally, both parties should have separate counsel. This must be accompanied by full financial disclosure by both parties, at least an opportunity to confer with legal counsel providing full informed consent regarding the rights given up in the agreement, and no undue pressure to sign it on the eve of a wedding. It cannot impact child support or child custody. It must also not be unconscionable to either spouse, either at the time it is executed or at the time of a divorce. If the company makes millions of dollars over the course of a ten year marriage, a court would not enforce the agreement according to those terms. In the case of an immigrant marrying a U.S. citizen, having a prenuptial agreement is usually a significant barrier to obtaining a spousal visa, which may be the only visa available after the marriage, on the grounds that this is considered a "yellow flag" that the marriage may actually be a sham for citizenship purposes only. A typical immigration officer who would read a post like this one or hearing an explanation for its purpose in an interview in those words would seriously consider denying a spousal visa or U.S. citizenship on the ground that the marriage is a fraud. The notion of a "probable divorce" in particular would almost certainly doom visa approval or a citizenship application, and would also, at the margins, make it less likely that it would be enforced at all. This is particularly true in the event of the very one-sided agreement proposed when you have a young couple that doesn't have established assets and children from prior marriages, or a pre-existing substantial amount of inherited wealth. Why else would a spouse agree to it? | the ratio of divorced men paying the ex wife versus divorced women paying the ex husband should more or less reflect the ratio of employed men vs. employed women Not necessarily. Some states (NC for example) look at more than just the work scenario that you propose. From § 50-16.3A: (1) The marital misconduct of either of the spouses. Nothing herein shall prevent a court from considering incidents of post date-of-separation marital misconduct as corroborating evidence supporting other evidence that marital misconduct occurred during the marriage and prior to date of separation; (2) The relative earnings and earning capacities of the spouses; (3) The ages and the physical, mental, and emotional conditions of the spouses; (4) The amount and sources of earned and unearned income of both spouses, including, but not limited to, earnings, dividends, and benefits such as medical, retirement, insurance, social security, or others; (5) The duration of the marriage; (6) The contribution by one spouse to the education, training, or increased earning power of the other spouse; (7) The extent to which the earning power, expenses, or financial obligations of a spouse will be affected by reason of serving as the custodian of a minor child; (8) The standard of living of the spouses established during the marriage; (9) The relative education of the spouses and the time necessary to acquire sufficient education or training to enable the spouse seeking alimony to find employment to meet his or her reasonable economic needs; (10) The relative assets and liabilities of the spouses and the relative debt service requirements of the spouses, including legal obligations of support; (11) The property brought to the marriage by either spouse; (12) The contribution of a spouse as homemaker; (13) The relative needs of the spouses; (14) The federal, State, and local tax ramifications of the alimony award; (15) Any other factor relating to the economic circumstances of the parties that the court finds to be just and proper. (16) The fact that income received by either party was previously considered by the court in determining the value of a marital or divisible asset in an equitable distribution of the parties' marital or divisible property. Take a look at § 50-16.1A also, where they define Marital Misconduct. Some may be of the opinion that alimony in NC is partly about punishment. (3) "Marital misconduct" means any of the following acts that occur during the marriage and prior to or on the date of separation: a. Illicit sexual behavior. For the purpose of this section, illicit sexual behavior means acts of sexual or deviate sexual intercourse, deviate sexual acts, or sexual acts defined in G.S. 14-27.1(4), voluntarily engaged in by a spouse with someone other than the other spouse; b. Involuntary separation of the spouses in consequence of a criminal act committed prior to the proceeding in which alimony is sought; c. Abandonment of the other spouse; d. Malicious turning out-of-doors of the other spouse; e. Cruel or barbarous treatment endangering the life of the other spouse; f. Indignities rendering the condition of the other spouse intolerable and life burdensome; g. Reckless spending of the income of either party, or the destruction, waste, diversion, or concealment of assets; h. Excessive use of alcohol or drugs so as to render the condition of the other spouse intolerable and life burdensome; i. Willful failure to provide necessary subsistence according to one's means and condition so as to render the condition of the other spouse intolerable and life burdensome. |
What would prevent me from creating my own nation? Somehow related, but different: Claiming my own country Is it "legal" to buy a piece of land and claim it to be another country than before(either inventing a new one or migrating it to an already existing one)? According to international law, it is. That's exactly what happened to the Crimea island in the Ukraine(now Russia maybe?), right? Organisations like the EU or the UNO are trying to enforce international law. Their force in regions like the Ukraine is limited, but in western Europe, that wouldn't be a problem. So, if it's possible without the influence of these international institutions, trying this in an area with their influence would be easier, right? A similar thing happened in Hamburg, Germany in 1993. But that was an "artwork" (article in german). Short summary: In 1993, Piet Trantel, an artist, claimed a ~10x10m piece of land as "Niemandes Land" ("nobodies land"). The land was owned by the city Hamburg, and the government accepted his claim as a piece of art. | There are certain requirements of Statehood according to the Montevideo Convention on Statehood of 1933, which is just a codification of international customary law: a permanent population; a defined territory; government; and capacity to enter into relations with the other states. Is it "legal" to buy a piece of land and claim it to be another country than before(either inventing a new one or migrating it to an already existing one)? According to international law, it is. Sure. But just because you say something is the case, doesn't mean it is. Always. Sometimes it is. But for present purposes, let's say that if you found an uninhabited island and said that you were a country, that wouldn't be the case - nor if you bought it from a man living on it. If you found some land that belonged to another country and decided to claim it as that of an existing country, then it would depend on the specific circumstances. That's exactly what happened to the Krim island in the Ukraine(now Russia maybe?), right? I don't think so. As far as I know, the annexation of territory isn't considered sale. In any case, the ownership of this land is still under dispute. So, if it's possible without the influence of these international institutions, trying this in an area with their influence would be easier, right? If trying this means declaring some land you have purchased to be a new sovereign state Nope. You probably still don't meet the requirements for statehood. If trying this means the acquisition of some land by an existing sovereign state Maybe. Probably not. The Montevideo Convention requires that statehood not be gained through force; while member states' interests may be greater where they are more invested, the requirements for acquisition of territory are the same no matter where you are. What would prevent me from creating my own nation? Money, defensibility, recognition, the fact that you probably don't own any land that you "buy" (depending on the jurisdiction and real estate system), the fact that you generally can't unilaterally declare yourself a sovereign state. | Much of "the woods" is owned by the US government, where your chances of any degree of success are highly variable. It is extremely unlikely that you can get away with it at all on a military base or in a national park. You may be able to get away with it for longer on Forest Service land (legally speaking, you're supposed to move along after 14 days), but if you're looking for a permanent legal claim to the land, that will not happen without an act of Congress. If public domain land has valuable minerals which you exploit, you may be able to chop down trees and build a cabin, but until Congress lifts the moratorium on mining claims patents, you cannot gain title to the land. (Public domain land is land not set aside for a specific purpose, such as a national park or wilderness area). Another possibility is to seize the land through adverse possession, as long as you satisfy the requirements for such an action in the state in question. Chopping down trees and building a cabin probably satisfy the requirements of actual possession, openness and notoriety. You would have to continuously live there for 5-30 years, depending on state, and have to have exclusive use of the land. If you get found and the owner tells you to leave (whether or not they get a court order), or if they say "I'll let you stay for a while", or they do a bit of landscaping, then you can't take the land (or, the clock restarts). There are a number of state-specific quirks such as whether you have to believe that the land is actually yours. Also, you can't dispossess a government. At some point, you will have to deal with the county, since you built the cabin without a permit. | The board is more complicated than you describe. It is a somewhat stylized world map, broken up into regions that do not necessarily correspond to countries. They have names that don't necessarily express what the region is geographically (particularly Ukraine, which extends far to the north of real-world Ukraine). There are defined water routes between certain regions that do not touch. Someone else starting from a world map would be very unlikely to duplicate the Risk board. I believe your friend's board would count as a derivative work. Now, the copyright holder is highly unlikely to come after your friend. I've seen stories of people who made their own X boards, publicized them, and the game company did nothing about it. The company (Hasbro? they own most of those games) would likely consider it as an extra bit of publicity. | See Article VI of the Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. This seems to me that it pretty clearly establishes the Constitution as taking the place of any previous laws. In particular, Article XI of the Articles is in conflict with Article IV Section 3 of the Constitution ("New States may be admitted by the Congress into this Union"). The Constitution says that Congress's action is required to create a new state, and doesn't mention any exceptions. The Constitution's terms presumably take precedence. If Canada wanted to become a state, it would have to be admitted by Congress under Article IV Section 3. | No they are not the same statement. Who has jurisdiction? Let's disentangle a few things: A jurisdiction is an entity that has sovereignty to make, interpret and enforce its own laws. Each country in the world is a jurisdiction. Sub-national entities like states, provinces and municipalities may be a jurisdiction depending on the operation of law in the country they are part of. Some supra-national bodies like the EU and the UN are jurisdictions. To some extent, even companies, clubs and similar bodies are jurisdictions to the extent that they can make, interpret and enforce its own rules. A jurisdiction can decide that it has jurisdiction based on a whole raft of matters including: where the event took place where the party(s) are resident where the party(s) are citizens registration of things like planes, trains and automobiles if money passed through their financial system etc. A court or tribunal has jurisdiction if the jurisdiction has jurisdiction and it is the correct body within its jurisdiction to hear a particular matter. Which laws apply? Once a court or tribunal has decided that it does have jurisdiction it then needs to know what law to apply. This may be the law of their jurisdiction or another jurisdiction or both. Example For example, imagine there is a company in New York, USA that sells a product to a consumer in New South Wales, Australia. Further suppose that the contract says it will be governed by the laws of Ontario, Canada (don't ask me why). In the event of dispute, let's say the consumer begins proceedings in the Local Court in New South Wales. The New York company petitions the court to say that the correct forum is the court in Ontario, or New York, or Mexico where the product shipped from but certainly not New South Wales. The court in New South Wales will consider the jurisdictional arguments and decide if it does or does not have jurisdiction. If it decides that it doesn't then the customer would have to bring an action somewhere else (where the process repeats). Worth noting that the New York company would be precluded from arguing in that forum that New South Wales was the right jurisdiction because they can't have their cake ... If it decides that it does have jurisdiction then it would consider what law applies. Its quite probable that they would accept that the contract is governed by Quebec law. However, Australian law, most specifically the Australian Consumer Law would also apply. If there was a claim on a tortuous basis this might be New South Wales or New York law. They would then proceed to decide the case on the applicable law including working out how to reconcile any incompatibilities. | Not all by itself. It requires the consent of the legislature of the existing state, as well as of the US Congress. But if they all agree, then yes, it is possible. US Constitution, Article IV, Section 3: New states may be admitted by the Congress into this union; but no new states shall be formed or erected within the jurisdiction of any other state; nor any state be formed by the junction of two or more states, or parts of states, without the consent of the legislatures of the states concerned as well as of the Congress. You might like to read about how West Virginia was created out of Virginia in 1863. Of course the State of Virginia had already seceded, and the Confederate legislature obviously didn't consent, but the federal government recognized a separate "Restored" government of Virginia which did consent. | The rule you are alluding to with respect to a television set is called the "first sale doctrine" which basically prohibits copyright and trademark owners from limiting the ability of a buyer of a good (like a CD or authorized logo T-Shirt) protected by copyright or trademark, from limiting further sales of that good (or the manner in which the good is used by its new owner) after a first retail sale of the good with copyright or trademark protections. This doctrine was derived from an old common law rule that invalidated "restraints on alienation" of property other than intellectual property on public policy grounds, and like the "restrain on alienation" rule for tangible property, the first sale doctrine that applies to intellectual property was also (at least originally) a court created common law rule. But Minecraft isn't, conceptually, a good. It is a continuing service provided over the Internet, and firms that provide continuing services on a licensed basis, as Minecraft does, can impose terms of service (a.k.a. an "end user license agreement" a.k.a. EULA) which must be complied with in order for users to be allowed to continue to utilize the service. So, its prohibition on exchanges of things of real world value for things of game value, except as the terms of service authorize, is permitted. A user of Minecraft is more analogous legally to someone skating at an ice rink than to someone who buys a CD or book. If you buy a ticket to skate at an ice rink, the people granting you the license to use the ice rink have the right to set rules governing how you utilize that service, and to terminate your license if you don't follow the rules (e.g. by skating in the wrong direction at the wrong time). Indeed, a ticket to an event is also known in legal parlance as a form of "license" just like a EULA, and licenses to use real property are the origin of the body of law that now governs the licensing of intangible intellectual property. A Minecraft license isn't something that you own (even if you have a license of unlimited duration), it is a qualified and limited right to use something that someone else owns, that you aren't allowed to purchase, but you are allowed to use on the owner's terms. How can they enforce servers to follow that rule if the server's are not using Mojang's proprietary software. The EULA or TOS obligation in the Minecraft business model is enforceable because Minecraft isn't in the business of selling proprietary software, even though it does do that. Minecraft is in the business of licensing access to data and online resources. The EULA regulates your access to the data on servers, and the computing power of those servers, not your ownership of an app which facilitates your use of the licensed services. And, while there are various contractual remedies for violating a EULA, the most basic one is a self-help remedy: to cut you off from your ability to use the service if you violate the owner's rules. Indeed, at least heuristically, the easiest way to distinguish an intellectual property good, which is subject to the first sale doctrine, from an intellectual property service, which can be licensed pursuant to a EULA, is whether, as a practical matter, the firm distributing the intellectual property has a practical ability to deny you service going forward without resort to the courts. If the owner of the intellectual property has no practical ability to do that, the intellectual property being distributed will probably be classified as a good and be subject to the first sale doctrine. But, if the owner of the intellectual property has the practical ability to cut you off from the intellectual property being distributed without resort to the courts, the intellectual property being distributed will probably be classified as a service, which is not subject to the first sale doctrine and may be licensed. | In Germany, nuclear weapons are considered weapons of war, which are heavily regulated. In particular, under § 17 KrWaffKontrG, it is prohibited to develop or produce nuclear weapons or trade in them or acquire them from or leave them to another person or import or export them or transport them through the territory of the Federal Republic or in any other way take them into or out of the territory of the Federal Republic or in any other way exercise the actual control over them (my translation). Exceptions apply only to nuclear weapons controlled by the governments of NATO members, not to individuals. If you happen to come into the possession of a nuclear weapon without breaking the law yourself (e.g. if you inherit it from someone who illegally built it), it can and certainly will be confiscated under § 24 KrWaffKontrG. |
Does the knowledge from a Creative Commons licensed work require attribution? I have question about the popular Creative Commons licenses, but this question may also apply to other licenses. When somebody reads answers on a forum or other content licensed under a Creative Commons license, and later that person wants to use information from that content in their own project, do they have to give attribution? I don't mean reusing an original, ready-made, complex solution, but - for example - information from an article about touch UI or creating something in a specific program/framework. If this is required, I think almost every program would have to have a big list of attributions, because all of us have used information from public content at some point. | Regardless of the license associated with a document, there is no copyright protection on information. Copyright protection prevents copying "expression", e.g. the wording, but not the facts / opinions expressed through those words. The non-legal academic concept of "plagiarism" is where the notion of attribution primarily comes into play. There is a special exception under 17 USC 106A that imposes an attribution requirement for works of visual art. CC and other license schemes may add in an attribution requirement for actual copying of the expression (the "BY" attribute in CC). If a work is licensed under CC-BY, you may copy the actual expression provided that you follow the terms of the license, which primarily means that you have to attribute the work in the prescribed manner. This does not apply to extracting information from a work, because information is not protected by copyright. | Apparently not The full text of the license is not included on the page you link to, or on any linked page that I checked. But the FAQ says: free educational licenses can be used strictly for non-commercial educational purposes (including academic research). Exactly how this company defines "non-commercial educational purposes" is not stated. If work is done on a student project, and after a non-student license is purchased that project is commercialized, would the license have been violated, and if so, would the company be likely to sue? The fist question cannot be answered without the full text of the license, and the second would require reading the minds of the company officials. But it seems reasonably clear that this is not what the company has in mind. Another user has pointed out a link to the actual license terms which I failed to note. Section 3.1 of the license says, in relevant part: ... JetBrains grants You a non-exclusive and non-transferable right to use each Product covered by the Toolbox Subscription for non-commercial, educational purposes only (including conducting academic research or providing educational services) ... This would seem to confirm what the FAQ quoted above says. It is hard to see how any development intended as an eventual commercial product would be covered under such a license term. It would appear that a regular non-student license would be needed for such use. | Reproducing someone else's copyrighted material without permission is a violation of that copyright. This includes using it to promote your Twitter account. This is a violation of copyright law and of Twitter's TOS. There may be Fair Use exceptions- this question is arguably fair use. However, it's extremely unlikely your intended post counts. In the case of the image in question, royalty-free means you pay for a single licence for that image and can then use it as much as you want (according to that licence). You can post that image in as many of your tweets as you like- you don't have to pay each time. If you don't want to pay for images you use, use public domain images, images with licenses that allow you to use them, or create them yourself. | One cannot use the works of others unless one of the following applies: The copyright holder has given permission, usually in the form of a license, often explicit, but sometimes implied. The work is not protected by copyright. This can happen in several ways, but the most common is that the work is old enough that copyright has expired. In the US, works older than 1927 are currently out of copyright. So are some others, the rules are a bit complex. In many countries, if the author or creator died more than 70 years ago, the work is out of copyright. In some countries this is a different number, between 50 and 100 years. This is not likely to apply to a file distributed with current software. If an exception to copyright applies. In the US this would most likely be fair use. In the UK it would probably be fair dealing. In other countries there are a variety of exceptions that might apply, including personal use in some. AS a comment by Jen points out "use" here refers only to those rights protected by copyright, such as making and distributing copied, making nd distributing derivative works, and the like. (Displaying and publicly performing seem unlikely to apply.) Now lets consider the specific situation, and which if any of the reasons for lawful use might apply. License or other permission. There is no explicit license. Since the program is distributed to be run, there is an implicit license to make the sort of use of the file needed to run the program. If the documentation describes how to employ the file as part of running the program, there is almost surely an implied license to employ it in that way. There is not, however, permission to make copies unless that is needed to run the program. There is surely not permission to make derivative works of the file or distribute copies to others, even if you do not charge anything. Expired copyright This pretty clearly will not apply. Fair use This might apply, or might not. There isn't enough info in the question to tell, not even to make a good guess. If any use would be non commercial, that helps fair use a bit. If the use would be for a different purpose than the one the developers used it for, that helps fair use a lot. If the use of the file harmed the market for the program, or served as a substitute, that lean against fair use. without knowing what the file is, what it does, and how it might be used, one really cannot weven guess. | Yes. A license is a legal form of permission to do something (usually, to use a particular property, whether real or digital or intellectual) and the conditions applied to that use. Different licenses for the same property are extremely common, for example, a free license for hobby or non-profit work and a paid license for commercial usage. Other conditions can include the requirement to make the derivative work also available in some manner or to disallow restrictive conditions should the derivative work be licensed itself, even up to requiring the exact same license be applied to all works. Wording the license exactly so that it achieves the goals you intend is the work of a qualified and registered lawyer, and obtaining their services is definitely recommended for this task. | Ideas are not protected by copyright, only arrangements of words are protected. If you "rephrase" by only a minor change of wording, leaving much of the wording intact, that is still a copyright infringement unless an exception such as fair use or fair dealing applies (and that seems a bit doubtful in this case). If you "rephrase" so that the wording is quite different, even though the idea is the same, there is probably no infringement. Copying elements of computer code or other IT commands that are essential to making an example work is not infringement. Where there is only one or a very small number of ways to naturally express a fact, copying such expression is not infringement, as facts are not protected by copyright. Adding examples but keeping significant wording unchanged is still likely to be infringement. | German perspective: In German law, there is the concept of Schöpfungshöhe (threshold of originality), which is required for authorship rights (Urheberrecht) to apply to a work. Basically, the idea is that a minimum of creativity is required for something to be protected. However, that bar is rather low. Thus, for example: Literary works are protected practically always. Maps are generally protected, even though you might argue they "slavishly copy nature", because the act of choosing what to show and what not is already creative. However, a faithful photographic reproduction of a painting is not eligible for Urheberrecht to apply (LG Berlin, AZ 15 O 428/15) So yes, a "slavish copy" of a work would not qualify for protection if there is no creativity involved. Note, however, that other types of protection apart from Urheberrecht might apply, such as Sui generis database right. | They have copyright in their additional text, and possibly in things like their visual design choices (fonts, layout etc). They may also have introduced a few deliberate typos to detect any literal copies from their version (rather as mapmakers add a few imaginary features to their maps). None of this creates any rights to the original text. You are still free to produce your own copies of the original text. Just get it from some other source so you can be sure not to include anything of theirs. |
Creating Online games bots I play this online web browser game, and I created a bot that I use to automate in-game actions. Of course using scripts/bots is prohibited in game rules and leads to banishment if detected. So my question is: legally speaking, is it illegal to sell this bot to other players? Or charge them a monthly fee for using it? If marketing it is legal, is there anything else that's illegal when dealing with online games and botting ? | Cheating in video games is not against the law. (If it's not for profit) IANAL The legality of cheating in video games has already been challenged in a court of law. You see, Nintendo didn't want people to cheat. Fearing it would lower the financial value of their games if you can beat them in just a few minutes. It was argued in court that a video game is no different than a book. If you want to read the end of the book, skip to your favorite chapter or skim quickly through a boring part you can. The conclusion is the game is yours to enjoy in anyway you want. Nobody can tell you how to play your game. There's an interesting and short documentary about the legal history of cheating in video games by the gaming historian. Also it doesn't matter what the TOS says. TOS is not legally binding Good news: another federal judge has ruled that violating a website terms of service is not a crime. But there's bad news, too — the court also found that bypassing technical or code-based barriers intended to limit access to or uses of a website may violate California's computer crime law. However, I've read you can be sued for breach of contract, if the site can prove any damages based on your cheating. I found that answer here on Law.SE and they didn't provide a source so I can't verify if it's true. | The sale of in-game resources for real-world money is usually disallowed explicitly by a game's terms of service. One notable case was Blizzard's successful injunction against Peons4Hire, a World of Warcraft gold farming company. Setting aside terms-of-use considerations (which vary by game/platform), the sale of virtual goods for real money is broadly legal. Wikipedia has a short list of jurisdictions with notable decisions on virtual sales; see the page's references for the official news stories or government documents. Most of the rulings have been positive for virtual-goods vendors, though China has banned the sale of real items for virtual currency (the opposite of your proposed plan) and South Korea has banned the sale of virtual goods for real money outright. Such sales incur normal tax responsibilities, just as any other income does. I don't know if any jurisdictions have imposed special legislation that place income limits or special tax rates for income from the sale of virtual goods. In the case of Steam specifically, the sale of virtual goods is broadly disallowed in Section 2.G of the Steam Subscriber Agreement, but narrowly allowed in Section 3.D. All virtual Steam goods remain the property of Steam, and you have a license to use them, which includes sale in limited circumstances. The prohibition in Section 2.G reads: G. Restrictions on Use of Content and Services ...you are not entitled to: (i) sell, grant a security interest in or transfer reproductions of the Content and Services to other parties in any way, nor to rent, lease or license the Content and Services to others without the prior written consent of Valve, except to the extent expressly permitted elsewhere in this Agreement (including any Subscription Terms or Rules of Use); ... And the narrow permission to perform trades in the Community Marketplace in Section 3.D (per the above "except to the extent expressly permitted elsewhere in this Agreement" exception of 2.G): D. Trading and Sales of Subscriptions Between Subscribers Steam may include one or more features or sites that allow Subscribers to trade, sell or purchase certain types of Subscriptions (for example, license rights to virtual items) with, to or from other Subscribers (“Subscription Marketplaces”). An example of a Subscription Marketplace is the Steam Community Market. You can use the Steam Community Market to trade items for real money; this kind of real-money sale is explicitly allowed and facilitated by Steam. Separately, you can also trade giftable games (N.B.: game trading does not support real money) using Steam's trading system. Applying terms to a game-trade (like requiring payment external to Stream's trading system) appears to be disallowed by the broad prohibition in 2.G, but it's not very clear. The mechanical transfer of the game from one account to another is allowed, but the fact that it is actually a sale in a way that is not explicitly allowed seems to make it against the terms of service. I have no idea to what degree this is enforceable nor to what degree Steam polices against trades that involve Stream-external money transfers (though a cursory search of conversations in the Steam forums suggests they might not care very much). | Please note that I'm not a lawyer. If you need specific legal advice, please consult a qualified attorney. Every time someone buys an item from someone else, there's at least an implied contract of sale where the seller of the item agrees to give the buyer the item to be purchased in exchange for a sum of money or other object of value which the buyer agrees to pay as consideration. Generally, in an online purchase, a contract of sale is completed when payment is made and the product has shipped. If the seller fails to provide the item you intended to buy after you make your payment, that's a breach of this contract of sale as the seller has failed to execute their end of the contract. I seriously doubt a "no refunds" policy would excuse the vendor for breaching the contract of sale. If you cannot resolve the issue with the vendor, then your best bet is to initiate a dispute through your credit/debit card issuer. | There is no case law as yet However, the most likely situation is that there is no copyright in the original works because they are computer-generated. There is certainly copyright in the code that created the art but the output of that code, the art itself, would probably not be subject to copyright. Copyright only exists in art created by humans. The US Ninth Circuit has held that animals cannot create copyrighted works. Subsequently, the US Copyright office has rejected applications for registration (a prerequisite to a suit in the US) of computer-generated art because it “lacks the human authorship necessary to support a copyright claim.” While this position has not been tested in the courts, I don't think they are any more likely to grant copyright to a program than they were to a monkey. What's going on? The OP states that there is litigation: there isn't. What there is, is a DCMA takedown request from Larva Labs. If this is complied with that will be the end of the matter; if it isn't then there may be litigation. However, before Larva Labs could sue CryptoPunks in the US they would first need to get a writ of mandamus to force the USCO to register it. If they try and fail then there will be a legally binding court decision that Larva Labs don't own the copyright in any of their computer-generated art. Which kills their business model and, presumably, them. This would be a very high-risk move. They may choose to sue in a jurisdiction where registration is not a prerequisite, however, that court would still need to be satisfied that there was a copyright that could be breached. So that's just a different take on the same problem. I have ignored the issue of NFTs as these are legally problematic in their own right and irrelevant to the main question. However, the NFT and the artwork are not the same thing. | In such a case the person who bypasses the terms knows that use of the site is conditioned on agreement to the terms, and has taken an explicit action to continue past the terms and use the site. I suspect that if a dispute were to arise where this is relevant, it would be held that taking such action was legally equivalent to clicking "I agree". But I don't know of any court case on this point, and i can't be sure what a court would do. If having intentionally bypassed the terms, such a person tried to raise his or her lack of consent to the terms as a defense to some obligation imposed by those terms, such equitable concepts as "unclean hands" and estoppel might be raised, since such a person, in effect, leads the other party, the site owner, to believe that s/he has accepted the terms, I suspect that such a person will be treated as having accepted them. If this becomes at all common, I suppose that the designers of such sites will in future store a record of such consent being given, and not allow the user to proceed unless it has been. | No It's your device, you can do what you like with it (subject to the law - you can't hit people with it. Unless they want to be hit: whatever turns you on, turns you on). However, if you do operate it outside their instructions then they would not be legally liable if it failed and injured you or someone else or set fire to the cat or whatever. The "prohibition" would limit their legal liability. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | No California has no laws on social gambling so it is treated identically to commercial gambling. Since betting on outcomes other than sports betting is illegal in California, such a bet would be illegal. While it’s unlikely to be prosecuted, as a contract it would be void its illegality and thus unenforceable. |
Will GDPR (EU law) make bad practices in security illegal? The way I understand it, the purpose of GDPR (General Data Protection Regulation, EU law) is to make sure that personal data is treated transparently and securely. So half of it is about giving the users more control over their personal data, and the other half seems to be related to INFOSEC and its best practices. It seems you have to comply with a list of "best practices" and document everything you do to be able to demonstrate that you are indeed protecting the user's data, although those "best practices" are just very vague guidelines or comments based on possible interpretations of the law (at least for now). But if that is the way it is, then will the all-too-common sloppy practices in security suddenly become illegal? For example, I don't think there is now a law that makes it mandatory to keep your website updated (think of CMS's like Wordpress or Drupal, or frameworks like Laravel, etc), but with GDPR if you have a Wordpress blog with subscribers then names, hashed passwords, emails, and maybe other personal data will end up in your database and you will have to take the necessary steps to protect that data. This means that if you don't keep your Wordpress up to date, you are breaking GDPR. And the same would appear to be true of a lot of other very common bad practices. Not having HTTPS is not considered illegal now as far as I know (unless you need to process credit-card data directly on your website, maybe). But with GDPR, it might become illegal in lots of other cases, like for simple websites that have contact forms where the user submits personal data. Or think of the bad practice of sending passwords in plain text via email, I see this all the time. And what if you download a backup copy of your website or your emails or your documents (all containing personal info about your clients for example), and you store the backup in a simple unencrypted USB key, or in an external drive that you keep in a drawer without a lock. All this is commonplace, and I personally see it everywhere from freelances to small companies, and while these bad practices might now be used to sue someone in case of trouble and show they are responsible, if nothing happens or if nobody sues you anyway, then who cares, it's ok. But with GDPR, all this will have to be documented explicitly, and there must be someone responsible for assessing all these situations and make sure everything is compliant all the time. So doesn't this mean that bad security practices are going to become illegal, no matter if those bad practices ever lead to data leaks or any problems? | It would probably already be illegal based on national laws that comply with Directive 95/46/EC (of the European Parliament and of the Council of 24 October 1995). What's new with GDPR include: the sanctions that can be imposed the accountability i.e. you must be able to provide documented evidence on your practices even before something happens the obligation to report all data breaches. So you'd definitely have more concrete responsibility to follow good security practices under the GDPR. | There is no requirement about "data" in the GDPR, so provided this is just "data", no. An empty form with fields for personal data contains no personal data. On the other hand, if the form is filled in by the user with personal data (as defined in GDPR article 4), and you receive a copy of the filled in form and process these personal data (as defined in GDPR article 4) - then the answer is: Yes. However, if you do not process the personal data (i.e. the form is just printed out on paper and filled in with a pen, and nobody except the data subject has access to the piece of paper with the filled in form - then the answer again is "no"). | At least as of 2011, when regulations under the Information Technology Act related to privacy and data security were issued (some of the relevant statute sections and regulations are linked in this answer at Law.SE), there was no non-contractual right to have your data destroyed, although a terms of service for a site could give you that right contractually. Instead, usually, a term of service agreement will do exactly the opposite and give a site owner an irrevocable right to keep your data forever. I am not aware of any subsequent statutory, regulatory or case law developments in India which have changed this situation, but that kind of tweak of IT Act regulations in India wouldn't necessary make headlines outside of the local IT industry press coverage in obscure trade journals. The EU is the only place of which I am aware that has any individual right to have data destroyed or suppressed even if it doesn't violated copyright, wasn't obtained illegally and isn't fraudulent or defamatory. Even then, as I understand it, in the EU this is not a unilateral right that applies in all circumstances and is instead a specific remedy for certain situations that have a particularly intense privacy aspect to them. | Corrections to your statements or quotations Your quotation "To fall within the remit of the GDPR, the processing has to be part of an "enterprise" (...)" is not from the GDPR, and is an erroneous statement. Also, the threshold of 250 employees you refer to, is only relevant with regards to the record-keeping obligations of Article 30. GDPR provisions relevant to your question The GDPR applies to individuals or students in accordance with the material scope of the GDPR, which is treated in Article 2 (2) c) where GDPR states that "This Regulation does not apply to the processing of personal data: (...) by a natural person in the course of a purely personal or household activity;" The Recital 18 of the GDPR gives some insight as to what would be a purely personal or household activity as follows: (18) This Regulation does not apply to the processing of personal data by a natural person in the course of a purely personal or household activity and thus with no connection to a professional or commercial activity. Personal or household activities could include correspondence and the holding of addresses, or social networking and online activity undertaken within the context of such activities. However, this Regulation applies to controllers or processors which provide the means for processing personal data for such personal or household activities. Interpretation To my knowledge, there are no specific guidelines regarding this matter to date from WP29. Those may be adopted in the future, or some requirements may already exist in local laws in one of the EU countries or from documentation available from local data protection authorities. If you are based in the EU, you could check this with your local data protection authority. There is, however, case law from the European Court of Justice as pointed out by Free Radical, interpreting the scope of the "personal use exception" in Directive 95/46/EC (which provisions are similar to the GDPR in this matter). If your hobby is not limited to your personal circle (yourself and the persons in your household), and thus if you plan to share the results of your data collection and processing with third parties (possibly teachers, other fellow students, or anybody else if you publish the results of your work) resulting from your "hobby" activity, you certainly would not fall in this exception to the scope. Case C-101/01 is an example of publication on the Internet made by an individual claiming to use its "freedom of expression to create internet pages in the course of a non-profit-making or leisure activity". The court clarified that: exception must (...) be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people Another, less optimistic interpretation from the examples given by the GDPR recitals, could derive from the spirit in which purely personal or household activity are to be understood. These examples actually refer to limited amounts of data and which are related to the individual itself (his own address book, his social networking activity, etc.), and creating limited risks relevant to the person herself and its contacts. In this view, there is a risk that a "hobby" in which you collect data about thousands of persons unrelated to you, could be considered as not being really purely personal. Actually, an interpretation of case law C-212/13 from the European Court of Justice also mentioned by Free Radical could support this reasoning. In this case, a video recording of people was stored from cameras installed by an individual on his family home for its own security purposes, but the cameras were also monitoring a public space. The court ruled that: To the extent that video surveillance such as that at issue in the main proceedings covers, even partially, a public space and is accordingly directed outwards from the private setting of the person processing the data in that manner, it cannot be regarded as an activity which is a purely ‘personal or household’ activity (...) Extending this reasoning to your question, a "hobby" consisting of collecting "huge list of names, emails, zipcodes" unrelated to you could be regarded as "directed outwards from the private setting (...)". Conclusion As a hobbyist, or a student, if you can work on fake computer generated data and achieve the same results in your personal learning purposes you should definitely consider doing so. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | Can a city request deletion of all personal data that uses a certain domain for logins? Well, they can, but they have no legal backing to make it happen. Their chances of succeeding are about as good as me requesting a Ferrari, a Yacht and a Mansion. I can make that request. People will laugh. I will not get it. I'm a little worried that I shouldn't allow certain domains to be used as logins in the first place, especially ones that might be school related You have no way to know who owns what email address. And it's none of your business. Your only interest should be in whether the address is owned by the person that is creating the account. You probably already do that by sending a confirmation link to the email address when people sign up. I'd like to have some idea for future reference if there's any case where the GDPR would require me to comply with such a request The only way you have to comply with such a request is if the owner can prove their identity. As far as I understood, the "Finnish city" was three degrees away from that. They could not provide any proof they are who they said they are, they could not provide a finite list of accounts they claimed to own and they could not even provide proof they own those accounts. They literally just wrote an email with zero legal meaning. I want to figure out the right way to reply to emails like this one The correct way to handle this is have a feature on your website where the account owner can delete their own account. GDPR compliant. Then you make a text template explaining how to use that feature and reply with that template to every request, no matter how stupid (like this case) they are. If they cannot identify themselves to you by proving they have access to their "own" email, they have no business wasting your time. Legally, they could provide you with a different method of identification. In case of a Finnish school, that would probably need to be power of attorney from all children's legal guardians and a specific way to identify the accounts that is consistent with the data given (for example if they entered their full name and address on your website). You would probably in your rights to demand a certified translation if it's all in Finnish. Apart from the fact that you as a private US citizen have no real means to check the validity of all that paperwork, personally, if I saw hundreds of pages of certified translated paperwork, I would probably just comply. Not sure it it were actually enough, but it certainly gets an A+ for effort to delete data from a private website. But a real lawyer might give better advice with a real case on their hands. Is deleting the data actually more of a legal liability than not deleting it in some cases? (People shouldn't be able to delete other people's accounts.) Indeed. You should not delete people's data because a random punk on the internet sent you an email. You need to identify who the request is from and if they are allowed to make such a request. Whether you have a legal duty to actually keep data, is up to you or your lawyer to find out. It depends on your data and laws. It is perfectly legal to make a website with a textfield that deletes any data you enter after a second. Destruction of data you own is only a problem if you break other laws with it. For example the IRS might not be amused if you destroyed invoices and other proof of taxable income. "Some dude claimed I must in an email" is not going to fly with them. That said, again, please, identify who you deal with, find out if their claim is valid. Don't do stuff because random internet punks write you an email. Because the next mail you get, will be from a Nigerian Prince. Please wisen up before opening that one. People on the internet, through stupidity or malice, might not have your best interests at heart. Don't believe random emails. | The GDPR does not provide specific rules about password resets. However, the GDPR contains a general obligation for the data controller to implement “appropriate technical and organisational measures” (TOMs), see Art 24 + 32 GDPR. What is appropriate depends on the “state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity”. A password reset functionality is complicated from a security perspective. On one hand, such functionality is really good because it ensures availability of the service for the user. On the other hand, such features can provide a backdoor to the service, undermining security goals such as confidentiality and integrity. These aspects must be balanced, and there is not necessarily one correct balance for every scenario. What the one-person IT department of a small company does can reasonably be different from what a multi-million user social network does. TOMs do not have to be purely technical – they can also include organisational aspects, for example training for customer service employees, and occasional checks to ensure that customer service staff doesn't abuse their access. But nevertheless, TOMs must be measured against the state of the art. Password reset by sending a time-limited one-time reset link with a cryptographically secure nonce to an email address is a state of the art method, assuming that no 2FA/MFA is involved. In some contexts, having customer service staff assign a new, random, one-time password could also be appropriate, for example if implementing a more secure workflow would be prohibitively expensive. Then, organizational measures would be more important. Failing to notify the account holder that someone requested a password reset is not state of the art, and represents a possible security risk. The data controller is required to defend against such risks! Resetting the password to a fixed default value is a very grave security risk, since it could aid unauthorized account takeover by a third party. It is unlikely that such a password reset approach could be GDPR-compliant. | the statute only applies to EU residents Wrong. GDPR applies to everyone in the EU (Art. 3). This means tourists are also covered. Residence status is completely irrelevant (Recital 14(1)): The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence There is no provision for data processors/controllers to demand proof from data subjects of them being located in the EU. You can challenge them, but if they refuse to provide proof you will still be liable to fulfill their GDPR request should they indeed be present in the EU. |
Are people born in a foreign embassy on US soil american citizens? This question seems hard to google, since all the results are about people born in US embassies on foreign soil. I'm wondering about the situation where someone's born in, say, the French embassy in Washington, DC. I know there are limits to the extraterritoriality of embassies, but I don't know if this is one of them. | Immigration and naturalization is pretty far out of my comfort zone, but I'm confident that the answer is yes. Although people often believe that a foreign embassy is considered the territory of that country, I don't know of any law that supports that belief. Instead, through the Vienna Convention, the embassy grounds remain the territory of the host state but are provided a variety of protections and immunities because of their diplomatic status. With the embassy on U.S. soil, the child would therefore satisfy the "born ... in the United States" prong of the 14th Amendment's Citizenship Clause.* But that would not be the end of the analysis, as birthright citizenship also requires not just that the child is born in the United States, but also that the child be "subject to the jurisdiction thereof." So if the child were born to an American citizen who had entered the Indian embassy to get a travel visa, the child would be both born in the United States and subject to its jurisdiction, making it eligible for birthright citizenship. But if the child were born to Indian ambassador or to diplomatic staff, who would generally be able to claim diplomatic immunity, that child would not be subject to the jurisdiction of the United States and would not be able to claim birthright citizenship. Slaughter-House Cases, 83 U.S. 36, 73, (1872) ("The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."). * I haven't been able to find any cases saying this explicitly, but all the cases involving children born in foreign embassies sort of skip over the question as though they just assume that the child was born in the United States. See, e.g., Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010); Nikoi v. Attorney Gen. of U.S., 939 F.2d 1065 (D.C. Cir. 1991) These cases also go on to conclude that those children are not citizens of the United States, because they are not "subject to the jurisdiction thereof." | Insofar as those treaties don't bind the US, the notion of "violating" such laws is moot. Hoda Muthana is, under Yemeni law, a Yemeni citizen (it is immaterial whether she has ever "accepted" or exploited it), and as such stripping her of US citizenship would not leave her stateless. In the case of Hoda Muthana, the action is based on the legal argument that she was not ever a citizen, based on the premise that her father was a foreign diplomat. Under US law, children born to foreign diplomats in the US are not birthright citizens, following US v. Wong Kim Ark. Birthright citizenship cannot be revoked. However, a person can renounce their citizenship, via certain acts, including taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state or a political subdivision thereof, after having attained the age of eighteen years;or (3) entering, or serving in, the armed forces of a foreign state if (A) such armed forces are engaged in hostilities against the United States, or (B) such persons serve as a commissioned or non-commissioned officer The defense argument would presumably be that ISIS is not a foreign state (despite their own claims to the contrary) so her affiliation with ISIS does not qualify. There are grounds for denaturalization, including falsifying or concealing relevant facts pertaining to naturalization, refusing to testify before Congress, or joining a subversive organization including Al Qaeda within 5 years of naturalization. | Skyborn are a known phenomenon. Country Citizenship? Generally, the kid automatically gets citizenship from his mom (and father) through bloodline, so our skyborn on that plane is likely that citizenship(s). There are cases that can't grant a citizenship that way (among them: Vatican is only granted ex officio) The sky is also treated as an extension of the land below. If the country you fly over has Jus Soli, it grants citizenship to the baby born above it. The USA has Jus Soli in its 14th amendment, our skyborn baby has dual citizenship to whatever country the mom is from. And in case the plane is over unclaimed water - think a nonstop flight Vancouver-Tokyo by Lufthansa - maritime law applies: The airplane is registered somewhere and treated as territory of that land while over international water. Lufthansa is in Germany, so the kid is, on paper, born in Berlin Germany (as that is what Germany prescribes for air- or seaborn). Germany does not use the unrestricted jus soli but the first test is the bloodline to determine what's the kid's citizenship is, unless the kid would have no citizenship through bloodline. So, if any one parent is German, the child is German. jus soli applies mostly to children of someone who has a permanent residence permit for at least 3 years and has been in Germany for the last 8 years: then the kid is (also) German, even if that grants dual citizenship - till the child is 23 and has to choose one of its citizenships. However, if all known parents are stateless or can't grant the kid citizenship through their bloodline (Yes, that happens!), then the kid born on this international flight has the right to become a German citizen - but some rules still apply. Which City/District/State is responsible? Now, which state's office is responsible? That is even more tricky. Technically, OP's kid that is born in Nebraskan Airspace is a Nebraskan, so it should be a Nebraskan birth-certificate. But the general rule in maritime practice would be to file the papers in the next port the ship lands, that would be Maryland if applied to planes. For a german registered ship or plane (my Lufthansa example), the responsible municipality would be Berlin, unless another municipality is responsible. US State citizenship? And then, I thank hszmv for this US Addendum: It should be pointed out that in the U.S. state citizenship is based on primary residency and can be changed over time. I've personally been a Maryland citizen, a Florida Citizen, and a Maryland citizen for a second time in my life. Usually state citizenship denotes exclusively where your vote is cast. No state can restrict a U.S. citizen from taking up residence in that state per constitution. So the Nebraska vs. MD distinction is academic only... the kid could move to California for the rest of his life without much fanfare. So, as a result, let's assume the parents of the Skyborn actually live in New York. Then te kid gets registered as a New York Citizen, his place of birth is "Above Nebraska" (or the state's equivalent rule) on OP's hypothetical. The couple on the Lufthansa flight could ask to have Berlin (Germany) written into the record, as that is where the interior of all Lufthansa planes is to be considered under the law over international waters. | Short answer: You find a country who is willing to recognize you as stateless, and issue you travel papers. At that point you can enter the U.S. by applying for a visa. The USA really does not want to create stateless people. They are laboring diplomatically to eradicate statelessness. As such, the State Department will want to see that you are secure in another country's citizenship before they will repudiate your US citizenship. Otherwise, they are very reluctant. The State Department will insist you do the repudiation in a foreign country at a US embassy. If you want to become stateless with your feet in the United States, you'll likely have a legal fight on your hands. Regardless, it will cost you $2300 in filing fees (plus, all your back taxes) :) At that point, you become the problem of the foreign country. You aren't anyone to the USA, and you have to apply for a visa just like anyone else. When a stated person enters the US, immigration's pivotal concern is whether you'll leave the US consistent with the terms of your visa, i.e. return to your country of citizenship. Being stateless increases this risk, and being a USA expat increases that risk further, since you are so familiar and comfortable in the US. If you found yourself in the kind of piccadillo that would qualify a foreigner for refugee or asylum status, the US would consider it just the same as others, since those statuses include right of residency. Some countries manufacture stateless people, e.g. Syria will not grant citizenship to a non-Muslim born there. | When the person has been naturalised, that is, when the US government officially recognises them as a US citizen. There are many pathways to citizenship and the ones on the linked page are pretty typical across the world although the details vary: residence for a period with or without marriage to a citizen service descent. | Probably not, because there is no legal case or controversy, and the law is clear enough. In US v. Wong Kim Ark, 169 U.S. 649, SCOTUS held that A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution The opinion has a long analysis of the "subject to jurisdiction" clause, reasoning that this excludes only children of diplomats, who are not subject to US law. Harris's parents were not immune diplomats so she was never immune to US jurisdiction. They are never forced to take any case, and are especially not likely to take a case so lacking in legal merits. | The Section 34 of Constitution of the Kingdom of Thailand says (highlight mine): […] No person of Thai nationality shall be deported or prohibited from entering the Kingdom. The referenced document points to the most recent 2017 Constitution. So the naive answer is No, however some legal gap may be found by the Constitutional Court (Section 27). More specifically, it would depend on the legal equivalence of terms "Thai citizens" and "person of Thai nationality". | This is an interesting hypothetical. In this scenario, Country Z does not have jurisdiction to enforce such a law on foreign nationals, unless Country Z has an extradition treaty with Country A. Generally, however, these types of laws would never be enforced as they are egregious abuses of government, and could possibly be elevated to the International Court of Justice if Country Z actually charges any individuals with such a crime. In these instances, however, war is a very unlikely scenario, since this would often be expensive and any escalation would most likely be small skirmishes that would lead to an eventual ceasefire, with the encouragement of the international community, without the involvement of UN Peacekeeping troops. |
Is there a “standard template” NDA contract that covers a majority of businesses requiring protection of proprietary information? The following paragraph stood out as unusual for an NDA that a friend was asked to sign: “Terms and Termination. This Agreement shall terminate two (2) year(s) after the Effective Date. The Recipient's obligations under this Agreement shall survive termination of the Agreement between the parties and shall be binding upon the Recipient's heirs, successors and assigns indefinitely” Is this “typical” language for a NDA contract, or does this go further then most “standard” NDA contracts? Or have you seen “similar” language in NDAs previously? I’m not asking about legality; or whether this would be binding if taken to trial, fyi. Thank you for any input you can provide specific to the paragraph above in quotations. | This would not be terribly unusual and would probably be enforceable. An NDA's restrictions would almost always survive the term of the agreement and keeping what you promised not to disclose secret forever would be a pretty common default. If you inherit nuclear missile designs in an old trunk from your grandfather from when he worked for a defense contractor, you can't give them to a terrorist group either. There is not "standard" NDA, but there are provisions which are more common to include in some form and those that are less common. If it was breached, there would be a statute of limitations running from the discovery of the breach to file suit, however. Also, damages would be minimal if the confidential information became outdated, for example, because the business in question ceased to exist a couple of decades ago, and no one would spend the money to enforce it. | A company had me sign two conflicting documents about two years apart. Which one would apply? Possibly both because actually there is no conflict. What you describe does not reflect that these documents are incompatible or inconsistent. There is no indication that the second document impliedly or explicitly replaces the first one. The second document seems just redundant so far. Employees could likewise be required to sign a third document that only says "no drugs or alcohol on the job site on Wednesdays", and that does not mean that any previous documents they signed expire. | Not under US law Under the US copyright law, specifically 17 USC 203: a) Conditions for Termination.—In the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination under the following conditions: The conditions are somewhat complex, and I will not quote them here. The author or authors, or the heirs of the author or authors, or a majority of them, have the right to terminate copyright transfers an license grants. This termination must be effective on a date within a five-year period starting 35 years after the transfer or grant was made, or 35 years after publication. There must be a notice of intent to terminate, sent at least 2 and not more than 10 years before the effective date of termi\nation. Section 205 (a) (5) provides that: (5) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant. Section 205 (b) provides that: (b) Effect of Termination.—Upon the effective date of termination, all rights under this title that were covered by the terminated grants revert to the author, authors, and other persons owning termination interests ... ... (4) A further grant, or agreement to make a further grant, of any right covered by a terminated grant is valid only if it is made after the effective date of the termination. As an exception, however, an agreement for such a further grant may be made between the persons provided by clause (3) of this subsection and the original grantee or such grantee’s successor in title, after the notice of termination has been served as provided by clause (4) of subsection (a). Summary Under US copyright law the author, co-authors, or the heirs of the author(s), or a majority of them may cancel a license during a specific five-year period No provision in the license or other agreement may waive this right, or bind the author not to exercise it. Open source and copyleft licenses generally do not mention this legal right of the author. Derivative (modified) works created under a canceled license may continue to be used, but the right to create new derivative works is withdrawn. It is not clear how an author goes about sending the required notice when a work was distributed widely to the general public under a permissive license. Open source licenses have been around long enough that early license grants could be subject to such terminations. But I have found not news reports or court cases about such terminations or attempted terminations and their effects. Probably most authors of open source software will not want to terminate the licenses they once granted. But some may, and US law gives them the right to do so. Users of software or other protected content under such licenses should be aware of these termination rights. | That really sucks. I've had similar experiences when handling the probate proceedings of lawyers who were not good about returning original wills to clients. I am providing an answer under general principles without researching Oregon specific accounting, record retention and probate laws, to at least give you a start although I recognize that a better answer would research these questions. The accounts/clients from her business were sold to another woman. Is it legal for us to transfer everything to her possession? Probably yes. There should be a government agency in Oregon that regulates accountants that has rules regarding that question. The linked rule seems to govern this situation. It says in Rule 801-030-0015(d) that: (d) Custody and disposition of working papers. (A) A licensee may not sell, transfer or bequeath working papers described in this rule to anyone other than one or more surviving partners or stockholders, or new partners or stockholders of the licensee, or any combined or merged organization or successor in interest to the licensee, without the prior written consent of the client or the client’s personal representative or assignee. (B) A licensee is not prohibited from making a temporary transfer of working papers or other material necessary to the conduct of peer reviews or for the disclosure of information as provided by section (1)(b) of this rule. (C) A licensee shall implement reasonable procedures for the safe custody of working papers and shall retain working papers for a period sufficient to meet the needs of the licensee’s practice and to satisfy applicable professional standards and pertinent legal requirements for record retention. (D) A licensee shall retain working papers during the pendency of any Board investigation, disciplinary action, or other legal action involving the licensee. Licensees shall not dispose of such working papers until notified in writing by the Board of the closure of the investigation or until final disposition of the legal action or proceeding if no Board investigation is pending. So, a transfer to a successor firm appears to be permitted. What if she refuses to take the documents? Her probate estate could retain them and stay open, they could be returned to clients, or there could be a rule established by the Oregon body that regulates accountants that authorizes a central depository of such records. In Colorado, for example, in the case of law practices with no successors, original wills and estate planning documents can be deposited in the records of the court with probate jurisdiction that has jurisdiction over the territory where the decedent's practice was located. But, I could not locate any provision of this kind in Oregon law. Is it legal for us to destroy/shred/etc. the documents? In many cases, yes. Some states, by statute or regulation, and others by custom, allow business records to be destroyed as a matter of course, normally one year after the longest statute of limitations that could apply to a dispute where the records would be relevant (often seven years since the longest normally applicable tax statute of limitations is six years). Destroying tax returns is usually not a big concern because a transcript of the old tax returns can be ordered from the tax collection agency where they were filed. But, business records related to purchases of property and capital improvements and depreciation, and related to divorces, can be relevant for decades after they were created, so the more honorable course of action would be to make at least a cursory effort (such as a postcard sent to a last known address of each client with a deadline for requesting a return of their file) to return the files of clients that include original business records as opposed to mere copies of tax returns. Oregon has a seven year retention rule for most purposes pursuant to Rule 801-030-0015(e) which is linked above: (e) Retention of attest and audit working papers. (A) Licensees must maintain, for a period of at least seven years, the working papers for any attest or compilation services performed by the licensee together with any other supporting information, in sufficient detail to support the conclusions reached in such services. (B) The seven-year retention period described in paragraph (A) of this subsection is extended if a longer period is required for purposes of a Board investigation as provided in paragraph (d)(D) of this rule and OAR 801-010-0115(3). The referenced rule in that rule states: (3) Requirements upon resignation. Upon resignation, a former licensee is required to: (a) Surrender the CPA certificate or PA license to the Board; (b) Take all reasonable steps to avoid foreseeable harm to any client, including but not limited to providing written notice of resignation under this section to all clients and inform all clients of where client records and work papers will be stored and of the clients’ right to secure copies of all such records and work papers at no cost to the client; (c) Maintain client records for a period of at least six years, or return such records to the client; and (d) Continue to comply with the requirements of OAR Chapter 801 Division 030 pertaining to confidential information and client records. (e) For the purpose of subsection (b) above and unless otherwise required by the Board, a resigning licensee of a registered firm is required to give written notice to only those firm clients for which the resigning licensee was the sole or primary CPA on an engagement, an engagement leader, or the client relationship manager. In practice, the consequences of destroying a record that shouldn't have been destroyed are likely to be minimal, because any recovery would be limited to the assets of the estate and there is a time limit for making claims against estates which is quite strict, and your grandma has no license to revoke. But, again, the honorable thing to do in order to honor her legacy and do right by her former clients would be to either transfer the records to a successor firm or to attempt to return them, as she would be required to do if she had surrendered a license during life. | The parties can be required under oath to explain what they understand the plain meaning of the words to be. Where they disagree about the plain meaning of the words, they can use expert witnesses to give weight to their interpretation. Once the judge determines the plain meaning of the words (either by agreement between the parties or by reference to expert witnesses or other evidence), it is a matter of standard contract interpretation. Even in the case of an idioticon, where no expert witnesses are available, if the disagreement between the parties surrounds only a few words, the judge could find that there is no actual ambiguity because the context. Also, the judge could refer to parole evidence if needed. The purpose of the written contract is to provide evidence of your agreement. It is a bad idea to create evidence that you both may want to rely upon at some point if nobody else can understand it. | They can terminate the "Project" (presumably defined elsewhere) if the client blah, blah, blah, however, they must still pay you for the work you did prior to them terminating the Project (if, in fact, they have terminated it - they have the right but they still have to exercise it). Hire a lawyer. | Attorney-Client privilege is a one-way duty: The Attorney has to maintain protected information in confidence. It's a professional duty supported in law. There is no corresponding duty for the Client to maintain anything in confidence. The client can waive the privilege at will. Some sample limitations to waivers are governed by Federal Rule Evidence 502. (Granted, in this scenario the concerned board member may be bound by some confidentiality agreement or fiduciary obligation as a consequence of service on the board, or membership in the association, but that's a different matter.) The ABA points out , in its article "How to Lose Attorney-Client Privilege" that: Either voluntary or inadvertent disclosure to outside or non-covered recipients, professional advisors outside the privilege, and experts and consultants, can result in waiver as a matter of law. In this "Ten Things" article the author points out: Business advice, however, is never privileged and – for in-house counsel in particular – the line between the two can appear blurry. ... If a document that is otherwise privileged is shared with third parties, then the privilege is lost. ... A common misperception among the business is that all confidential information is privileged or if they label the communication as privileged they can keep the documents out of the hands of third parties. As we’ve seen, this is not correct and the fact that there is a non-disclosure agreement or other type of confidentiality agreement in place will not make a document privileged nor will it preserve the privilege if it is disclosed to a third party. | When does an agreement start and end? I need a definition of 2 weeks deadline in UK law I highly doubt UK law provides a definition for that. When material, that precision ought to be provided in --or deduced from-- the contract itself, its nature, or its circumstances in order to override the ordinary meaning of week. The term "week" ordinarily means a period of consecutive days. This suggests that, in the example you outline, the extension includes the entire Monday of the second week. As you rightly point out, this criterion gives the sender no incentive to email his notification during working hours. However, that issue is presumed to be factored in when stipulating the deadline of fourteen days. The language "time of transmission" is inconclusive as to whether the term "time" is intended for greater precision of deadline or merely to preempt the effect of significant discrepancies of time zone. For instance, if the sender emails his notification from U.S. West Coast Monday night, it counts as sending it on Tuesday because by then in the UK it was already Tuesday. You would otherwise need additional elements to support the position that "time of transmission" was meant for expiration of deadline to match the hour and minute of the notification. |
In the United States, can someone take the death penalty for someone else? Could a person be executed in the place of someone else in United States? | No. There is no legal mechanism by which this could happen. | "Double jeopardy" applies to a criminal proceeding, that is one that needs to be proved "beyond a reasonable doubt," and involves criminal sanctions such as jail time. Once OJ was acquitted of criminal charges, he couldn't be tried again as a "criminal." The second trial was a civil trial, with a "lesser" standard of proof (preponderance of evidence), and lesser "damages" (money, not jail time). So even though the facts were the same, OJ was accused of violating a different standard, that is a different "law" so to speak. He could be tried for a "tort" just not a crime. Or put another way, "wrongful death" is not the same as murder. The latter requires intent. Wrongful death suggests "tortious" negligence, but not necessarily intent. | The laws governing the disposal of dead bodies do not make distinctions based upon citizenship. You have heard a myth that isn't true. There are regulations governing the disposal of dead bodies, but this isn't one of them. | Virtually nothing. Just before posting the question, I found this article and became intrigued. Jakarta: Indonesia's Constitutional Court has no power to alter the death sentences of Bali nine organisers Myuran Sukumaran and Andrew Chan or make any ruling on their case, says Indonesian law expert Tim Lindsey. Instead, lawyers for the two men hope Indonesian President Joko Widodo will come under political pressure to reassess their pleas for mercy if the court rules that the constitution requires the president to properly consider clemency submissions. In other words, the only person who could make a difference was Widodo1. The only thing the lawyers could have gained would have been a delay in the executions, prompting time for further pleas to the president. This article makes things clearer: The case could have had an impact because it challenged the clemency procedures of the president, specifically in regard to foreigners, but the court could not have overturned the death sentences. Normally, its rulings are binding, but this was not so in this case. 1I don't mean to imply that this was all his fault; I apologize if it seems that I do. | Murder is Murder Adding all the elements of murder are proven beyond reasonable doubt then the person gets convicted. The fact that they were a sibling would be considered in sentencing as it always is. | Most U.S. states provide zero compensation of any kind in this situation, although there are a few states that are exceptions. (Far more states provide compensation from conviction to release for a wrongfully convicted person.) Even in those few states that provide compensation to acquitted defendants, the compensation is typically set by statute and is frequently much less than what a middle class person would earn and certainly does not capture the full extent of the defendant's economic loss. | Given that a murder and an involuntary manslaughter are two different offenses, could a jury be asked to adjudicate on both counts? This happens routinely. Could it find the defendant guilty of both? Only for certain offenses. See lesser included offense. Could the DA even accuse the defendant of both during the same trial? Yes, which is how juries are asked to adjudicate multiple offenses as noted above. What about in different trials? All the crimes associated with a given act have to be tried at once. If you've been acquitted of murder in connection with one act, you can't subsequently be tried for involuntary manslaughter for the same act, nor vice versa. And what about murder and attempted murder? I don't think it's possible to be tried for an attempt when the crime has been successful; certainly, the opposite is true. But again, if the charges are based on the same act (i.e., we know you tried to kill the victim, and we know someone succeeded, but we don't know whether it was you) then the charges would have to be tried at the same time. | It excludes pain and suffering incidental to lawful capital and corporal punishment Many countries around the world still execute people. As far as is known, no form of capital punishment is totally painless - even lethal injection involves a needle. In any event, the anticipation of capital punishment is likely to cause suffering. Similarly, corporal punishment such as caning is still a lawful sanction in many jurisdictions. This clearly causes pain - that’s the point - but it isn’t torture. It would also exclude lawful corporal punishment of students by teachers where this is still legal. Or of military personnel by their superiors, again, where that is legal. Now, organisations like Amnesty International consider all of those things to be torture. I don’t think they are wrong in taking that position but, under the convention, they aren’t legally torture. |
Hiring someone for one time event, employee or contractor? If a person who would normally be classified as an employee is hired for a single one day event, would this allow classification as an independent contractor? For example, say a company that does not normally do so, decides to host an event. They decide to pay someone to run the cash register where visitors can pay for entry. Facts favoring Employee Classification: The company controls when and where the employee will work. There is no opportunity for profit or loss. All equipment is provided by company (cash register and chair?) The worker is performing a vital service to bring in revenue. (Maybe?) Facts favoring Contractor Classification It is not an ongoing business relationship. The worker is not doing something normally associated with the business. Does the fact this relationship exists for only one day qualify this person to be treated as an independent contractor? | The criteria used by the IRS suggest that for federal tax purposes, the cashier would be properly classified as a contractor. Behavioral Control: A worker is an employee when the business has the right to direct and control the work performed by the worker, even if that right is not exercised. There is probably some training involved here, but it seems negligible. Has the company actually retained the right to direct and control the cashier? Is he obligated to use their register, as they tell him to use it? Is his work evaluated for compliance with those instructions? I'd guess that in most cases, the company doesn't actually care about any of this. As long as the company got all the money it was owed, would it really care if the cashier just stuck the money in his pockets until the end of the day? I'd also argue that it isn't really the employer controlling the when and where of the contractor's work, but rather the circumstances. Classifying him as an employee because he has to be at the event doesn't really make any more sense than saying your plumber is an employee because he has to come to your house to do the job. Financial Control: Does the business have a right to direct or control the financial and business aspects of the worker's job? The investment in the cash register seems relatively nominal. The company probably does not reimburse the cashier for expenses incurred in getting the job done. The cashier is presumably free to offer his services to others. The cashier is presumably being paid a one-time, flat fee. As you noted, though, the fact that there isn't much profit-loss opportunity is one factor pointing in the other direction. Relationship: The type of relationship depends upon how the worker and business perceive their interaction with one another. The fact that this is a single, hours-long job is probably the strongest evidence that the cashier is a contractor. Further, the cashier's job is not a key part of the business, as it is only a minor portion of an event that the company has never performed before and has no apparent intention of repeating. I assume that the company is not providing health benefits, sick time, etc., and that any contract with the cashier includes no language suggestive of an employer-employee relationship. Conclusion: The employee-contractor distinction is pretty fact-intensive, but based on what you've provided, there seems to be a much stronger argument that the cashier would be a contractor. | I can't find any law that would prevent an employer from requiring this. Under current Florida law, an employer can even demand passwords and access to an employee's social media accounts. A bill was proposed to prohibit this, but it hasn't passed. Generally, an employer can require anything they want as a condition of employment, as long as it is not illegal. Florida has at-will employment so the employer could certainly fire the employee if they don't comply. | Possibly Your employment contract is only one part of your deal You are also bound by the company’s constitution and any shareholder agreement that may exist. Companies often have wide ranging powers to repurchase their own shares at fair market value or following a pre-specified formula. It’s not uncommon for private companies to get an option to purchase shares automatically from ex-employees. | Yes, this would be an ADA violation The Americans with Disabilities Act (ADA) requires that "reasonable accommodations" be provided to people with disabilities in both the job application process and in the workplace. Specifically, this would be a failure to provide "modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires" as described in the EEOC enforcement guidelines. Software engineers generally are not required to stand up and move around much to do their jobs, so the employer wouldn't have an argument that requiring an applicant to do so in the interview process is somehow related to job requirements. I'm a software engineer myself, and I spend almost my entire day sitting down (and very little time drawing on whiteboards, especially now that I'm not allowed to be in the building where the whiteboards are). Possible reasonable accommodations would include getting a portable whiteboard that's lower to the ground or allowing the candidate to draw on paper instead. | For a definite answer, Bob should ask his tax advisor. German freelance status ("Freiberufler") is a bit difficult to navigate, because legally speaking, this status can only be applied to contract work that requires a university degree, everything else is a regular business ("Gewerbe") that is taxed differently and requires you to join the chamber of commerce. This has become a bit murky as there are freelance software developers without a degree (who should be careful about using the word "engineer") and the tax office seems to accept that, but I'm not entirely sure they are as lenient towards entertainers (which YT would fall under). The way I understand the Blue Card FAQ, freelancing is not allowed for Blue Card holders, I'd consider that the bigger problem (but that's an immigration issue, not a tax issue). | If everyone hired after date X has a different contract from anyone hired before that date it is not discriminatory. (As long as they do nothing naughty like changing the contract, hiring three black people, changing the contract back). | Defining the value of a privately held company is hard (tax returns don't provide a very informative basis because accountants will tend to under-value things like "goodwill" in order to avoid paying tax). However that doesn't matter for this stack, because the only legal question is: If I had some means of coming up with a number and presenting it, would it be legally acceptable to define that as their company value in a license? And the answer is: absolutely yes! You are pretty much entirely free to define terms in your license as you see fit. If you want to define "company value" as meaning "the annual gross salary paid to receptionists", go for it. (You would probably need to define what a "receptionist" is in this case). | In general, in the US, Bob may do this. If the second company is a competitor of the first and Bob has access to confidential information from his first employer, then there could be an issue. Some employers require their employees, or some of them, to agree to "exclusive employment", that is to agree not to accept any other employment while employed by the company. If Bob has agreed to such a contract, he would be in breach of it if he took a second job and could be fired if his main employer learns of this. This is not a problem if Bob gets permission for the vacation work from his usual employer. In any case, Bob is not committing a crime, even if he is violating his contract. |
On what basis might Trump's executive order on immigration be illegal? On 27 January 2017, US President Donald Trump has issued an executive order entitled 'Protecting the Nation from Foreign Terrorist Entry into the United States'. On 30 January 2017, the acting Attorney General at the time refused to defend it in court because it was unconstitutional or otherwise illegal: [news article]. On what basis(es) might this executive order be illegal? | A few possible reasons it could be illegal (on an issue spotting basis, not a careful analysis of each possible reason): The EO is intended to discriminate on the basis of religion and in fact does so in violation of the 1st Amendment to the United States Constitution. The EO is intended to unlawfully discriminate based upon race or ethnicity in violation of U.S. statutes or the 14th Amendment. The EO was adopted without observing the notice and hearing requirements of the Administrative Procedure Act. The EO took effect prematurely because it was not duly published in the Federal Register for the time period required by law, or was otherwise insufficiently promulgated. The EO repeals other regulations currently in force in violation of the Administrative Procedures Act. The EO improperly disturbs the vested, albeit limited, rights of existing visa holders (or visa applicants) without due process of law, and/or in violation of unenumerated 10th Amendment rights. Refugee visa applicants under an already adopted regulation are entitled to an individualized consideration of their application as a matter of due process and the EO amounts to an ex post facto law as applied to people already in the application process under that regulation. The EO improperly deprives people who purchased non-refundable plane tickets in reasonable reliance of their visa rights which were not revocable under any law in place at the time those tickets were purchased of a property right in those plane tickets without compensation or due process of law under the 5th Amendment. The EO is void for vagueness as the ambiguities in its drafting makes it impossible to determine who is and is not affected by the EO and in what manner. There is a conflict in the immigration statutes between statutory provisions and treaty obligations related to refugees, and the regulation implementing a particular section of the immigration law's grant of regulatory authority, and the refugee protections must prevail. A person claiming to be a refugee has a due process right to individualized consideration of their circumstances, either by statute, by treaty, or under the constitution, which the EO does not respect. The treatment of dual citizens under the EO either is contrary to statutory immigration law or to a treaty or to the U.S. Constitution and customary international law. The EO violates one or more treaties between affected countries and the United States regarding immigration. The scope and terms of the EO exceed the authority granted to the President by the section of the immigration statutes relied upon for authority to pass the EO. The administration failed to articulate a rational basis for distinguishing between nations included in the ban and nations not included in support of the EO as required by the Administrative Procedures Act. There is no rational basis for distinguishing between nations included in the ban and nations not included as required by the U.S. Constitution (a much weaker test since it allows for post hoc rationalizations). Authority to implement the relevant section of the immigration law is vested in one or more officials at the United States Department of State, rather than the President directly, and none of those officials approved the EO. The military interpreters and their families may have a contract with the U.S. government as part of their employment that gives them a right to a visa, in which case the EO would be a law impairing contracts in violation of the U.S. Constitution, as applied to them. Some of the immigrants may need to accompany U.S. citizen children in order for the children to exercise the childrens' rights to enter the country and as applied the EO may violate the U.S. citizen childrens' rights. The CBP may be incorrectly interpreting the EO (which even the administration is not clear about) and therefore violating the law as applied because the EO does not actually authorize their action or because the way that they interpreted the EO was an abuse of their discretion. The manner in which the EO was implemented (e.g. long periods of time in handcuffs for civilians not accused of any crime and with no ability to foresee that they would be denied entry, separating young children from parents, etc.) may have been an unreasonable seizure as applied, even if detention per se was authorized. The 4th Amendment requires that searches and seizures be reasonable in the manner that they are carried out even if the search or seizure is itself authorized by law. UPDATE February 2, 2017: A federal judge in California has found that at least some of these reasons have merit and has stayed the EO and set an expedited hearing and briefing schedule on whether the injunction against the EO should remain in force. UPDATE AND EPILOGUE June 28, 2018: The final version of the ban was ultimately upheld by the U.S. Supreme Court in the case of Trump v. Hawaii on June 26, 2018 in a 5-4 decision. Litigation of the version of the ban in the OP was dismissed as moot when it was withdrawn and replaced with a similar but newer version of the EO. The four justices in the dissent rely on the first reason given, as did lower courts in the case and in parallel litigation. A core distinction between the majority and the dissent is the weight given by statements made by President Trump about the policy, and how much deference to give to the government's reasons for the policy offered up in court. Justice Neil Gorsuch, who cast a deciding vote in the case, took office April 10, 2017, after this answer and the first update to this answer were written. | "Police" that one would generally encounter in the US are local or state agencies, and the ordinary crimes you mentioned are matters of state law, so they would be reported to local or state police. (There are federal law enforcement agencies, but they only deal with specialized areas of federal law, and you wouldn't ordinarily encounter them in daily life.) On the other hand, immigration is a matter of federal law. The responsibilities of local or state police are governed by state law, and the federal government cannot compel state officers to enforce federal law. A specific state's law could potentially require state and local police to ask about people's immigration status and/or ask the federal government to check on the status of someone they suspect might be illegal. I believe a few red states have enacted, or are considering, such laws, though they usually deal with people stopped by police rather than people filing a report. Some of these laws have been challenged in court, and I am not sure which exact parts of which laws are still being implemented for each of those states. Most states do not have such laws. | The law you cite says that the Secretary shall furnish such committee with any return or return information specified in such request That includes specific individual returns. That it was intended to include such returns is made clear by the provisions restricting identifiable individual data to executive session. Whether this ought to be the law might well be debated. Whether the House ought to use this law as a way to get at Trump's returns could also be debated. Those are matters of politics, or perhaps ethics, not law. Whether some other provision of law overrides this provision in this case is pretty clearly going to be argued in court, and we will see what the decision is. I won't try to predict it here. | I think that is not a "reasonable" interpretation of the order, but that's separate from the question of what will be enforced. Focusing on the word of the order, No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer What does it mean to "compel" a person to do something? A court can compel a person to stay in jail for some period of time, and can order the police to use force to enforce that requirement – that's the classical example of compulsion. Nobody except the police can compel a consumer to do anything. All of the words of the order have to be given meaning, and it is not reasonable to say that "compel" is limited to "actions backed up by police action". The government does not separately compel "consumers" and "employees" to do things. In order to sensibly interpret "compel" and "consumer", this has to interpreted as including things other than "pointing a gun at a person". The only sensible interpretation is one that includes denying service to those who do not comply. In addition, the series of "Whereas's" clearly indicate a ban on "no shots, no service" conditions. It remains to be seen in court whether this is found to be enforceable (via the "failure to comply" clause, exactly analogous to other emergency powers allowing restrictions on gatherings etc. previously). | In the UK and USA (and I imagine other jurisdictions) there have been laws that explicitly provide for orders obliging entities to (A) provide access or information and (B) keep the order secret. For example, in the USA the Stored Communications Act, Fair Credit Reporting Act and Right to Financial Privacy Act authorise the FBI to issue National Security Letters (Wikipedia, EFF, EPIC, Lawfare). These are an administrative subpoena, without prior approval from a judge, for meta-information (e.g. phone numbers dialed or email recipients addressed but not the content) of communications relevant to national security investigations. They typically contain a non-disclosure requirement prohibiting the recipient of the NSL from disclosing its existence or the FBI's demands. There have been challenges on First Amendment grounds to the non-disclosure aspect but, so far as I'm aware, they have all ultimately failed. Some of their non-disclosure requirements may eventually expire under other laws. In response, so-called 'warrant canaries' (Wikipedia) have been developed (and gone a bit further than the original idea) - these are intended to allow entities to relatively passively warn of such an order having been received if not the detail of the order. However, they can be legally risky in that they might be seen by a court as trying to circumvent the non-disclosure requirement and therefore breaking it. | The legal question here is whether police have an enforceable power to enjoin a person from visiting a particular person or from entering a particular jurisdiction (especially the one where they have police powers). The obligation to obey police orders generally ends at matters regarding arrest, traffic orders, or crowd control. Freedom of travel is a fundamental constitutional right, along with freedom of association. That does not mean that you can go absolutely anywhere you want and do anything you want with whoever you want, but it does mean that any restriction have to be encoded in law, and such laws have to pass strict scrutiny. Any enforceable legal restrictions would have to emanate from the courts. | There are many different kinds of laws, and many different ways of violating them. The main two are (1) criminal law, which generally addresses violations that injure the government's interests; and (2) civil law, which largely addresses violations that injure private parties' interests. Some conduct can violate both sets of laws: If you steal something from a store, the government can put you in jail for theft, and the store can sue you for the value of the item you stole. If you punch someone in the face, the government can can put you in jail for assault, and the person you punched can sue you to pay for their hospital bills. If you grope a woman in a dressing room, the government can put you in jail for sexual assault, and the woman can sue you for battery. Donald Trump falls into that last category. Jean Carroll has sued him for battery, but the government cannot prosecute Trump for the crime because enough time has passed that the criminal statute of limitations has expired. Moreover, a civil trial cannot subject someone to jail time because such a deprivation of liberty requires greater procedural safeguards -- jury unanimity, proof beyond a reasonable doubt, etc. -- that do not always apply to civil trials like this. Trump's status as ex-president has no bearing on the penalties the court may legally impose on him. | ICE has a degree of authority to deport without court hearing, via an expedited process. The legal framework for such deportations are explained here, and rely on 8 USC 1225. The Secretary of DHS has authority to establish rules, and has recently done so here. The current regulations pertaining to expedited removal are at 8 CFR 253.3. There is no exemption for people being medically treated, for covid-19 or any other reason, but "parole" is available (at the discretion of the attorney general) to "parole" an immigrant if it is "is required to meet a medical emergency". Thus an illegal immigrant in the ICU might be exempt from immediate deportation, but that is at the discretion of the AG. State and local officials do not have the authority to interfere in the enforcement of federal law, even if the state or municipality has declared itself a "sanctuary". The criminal penalties for interference are spelled out here; no law compells cooperation, the law simply prohibits forcible interference. |
Is it legal for a company to erroneously charge you and refund you in credits? I was recently charged a $5 fee in error by a California based tech company. I disputed the charge via app and they issued me a “refund” in credits for future use of their service. I have not been able to contact the company in regards to getting my payment method refunded. I’m upset at this shady business practice, because I am out of the $5 for their error no matter what and the only way I can experience the refund is if I use their service again. Personal feelings aside, I’m genuinely interested if this is a legal way to conduct business. Can a company erroneously charge customers and issue credits as refunds instead of refunding the payment method directly? | No, this isn't legal. Had you authorized the purchase, then it would have been legal; this is similar to a store credit for returns without a receipt. But since you claim they charged you in error and you did not authorize the transaction, then they must refund the money directly to you (unless you agree to another method of compensation). In fact, a direct refund should have been the default unless they gained your permission to receive it in a different form. Why are you unable to contact the company? That seems like the simplest resolution so this. | Yes, you did something wrong; you used both the university's trade mark and copyright without their permission. I don't know the law in India, however, if it is similar to Australia it is unlikely that the police will be interested in doing anything about it. While it is technically a crime, criminal prosecution is usually reserved for egregious breaches on a for profit basis. I suggest you apologise and agree to stop distributing your app. | It's the seller's responsibility. Note that in the UK you actually get much more than 2 years. The 2 year rule is the minimum required by the EU, but each country is free to implement that as they choose and the UK has much more. In the UK you are protected by the Consumer Rights Act. It states that products must last a "reasonable length of time". What counts as reasonable depends on the goods. For electronics 2 years is usually the absolute minimum, but for things like televisions the courts generally consider it to be 5 years even for cheap models. Under the Act the retailer is responsible. They can either replace the device or refund you, with the refund amount accounting for the 1.5 years use you had from it. As it was part of a phone contract it could be difficult to agree on a value for the speaker, but looking up the replacement cost for the same or a similar device is a good place to start. Which? has a lot more information and advice. | It's not legal The terms that you agree when you enter a contract can only be changed if: the contract provides for variation of its terms and then, only in accordance with that procedure. This may allow unilateral changes - these are common in ongoing relationships like telephone and ISP contracts but it appears from the Kickstarter page that this was not the case here. the parties agree to vary the contract either by deed or by another contract. If by deed then the law of making deeds must be followed, if by contract then the laws of contract must be followed. You mention "around $70AUD" which leads me to guess that you are in Australia. If you were there when you entered the contract then the Australian Consumer Law will apply to the transaction and, more generally, to William Painter since they explicitly "do business in" Australia because they ship there. It is illegal to make misleading and deceptive claims under the ACL and the fines can be huge. Perhaps a note pointing this out to them and letting them know that if they waive their fees in you case(s), you wont feel the need to report them to the ACCC. | Answering my own question after some more research (which I should have done in the first place). Yes, it's illegal both in the US and in the EU Many airlines do it anyway because they are desperate for cash and hoping that no government agency will enforce it. A trade group is actually lobbying to change the laws Airlines will do what they can to make you accept a voucher. Some create an incentive, some make it just extremely difficult to get refund or they will simply deny it. If you accept a voucher, you waive the right for a refund. Only realistic option is a charge back through the credit card but I haven't found any successful examples yet. Good overview articles: https://onemileatatime.com/flight-cancelled-refund/ https://viewfromthewing.com/airlines-are-breaking-the-law-by-refusing-refunds-for-cancelled-flights/ | Yes, it's absolutely legal. It turns out that UK retailers offer replacement out of their own politeness and are not required to do so by law. If they gave you refund then that's all they need to do. | They're not actually billing people different amounts because they have insurance or not. Doctors can pretty much bill a patient whatever they want for their service, similar to how a grocery store can charge whatever they want for their fresh deli cheese. Generally, they charge every single person the same amount. It just gets discounted depending on the insurance you have and how much they're willing to pay. One of the huge benefits of having medical insurance (outside of them paying for your medical expenses) is that they build contracts with service providers, known as their network. Those contracts specify prices (both preset and algorithmic) for certain services that you receive through those providers - the insurance provider will only pay that much and the doctor cannot charge the patient more than what is paid. If a claim was processed through a different insurance provider, the price will likely be different since each provider will have a separately negotiated contract with different price points for different services. It's not a system of "this is the insured price and this is the uninsured price" but rather a system of "this is the contract you established saying you'd accept this much from us for this service." For an uninsured person, though, you have no insurance provider and more importantly no provider contract backing you up. So you'd have to face the full force of the non-discounted price of those services. You'll face the same problem even with insurance if you go out-of-network, where the provider does not have contracts and therefore will only cover up to a certain amount that they would normally pay out for a similar service, requiring you to cover the rest of the amount of whatever the doctor decided to bill for that particular service. Without that insurance contract preventing the doctor from billing you the remainder of what they'd normally charge, you'll likely be slapped with a bill for that remainder. Directing back at your original question: there is no reason that a medical provider would ever legitimately bill someone a different amount because they are insured or not, thus there are no laws preventing it. It's that they already agreed to accept this certain amount from patients covered under this specific insurance. Again, they bill every patient the same amount - the insurance company is just saying "we're giving you this much and the rest of this, yeah that needs to go away." If you've ever looked at an EOB (Explanation of Benefits) from your insurance company, you'll see that the actual billed amount from the doctor is almost always much, much higher than what is actually paid out by you or the insurance, often known as the insurance discount. Maybe you'd rather think of it as a coupon? | It doesn't seem as if the bank is discriminating in the way you suggest. They offer two types of account: (A) accrues or charges interest and (B) does not accrue or charge interest. The bank says you can choose A or B whatever your religion. You the customer choose A or B, possibly depending on your religion. So I do not see what cause of action you have or what damages you have suffered. Therefore I don't think you could sue them. |
Can a nation A stop nation B from issuing visas to citizens of nation A? How would it legally work? For example, could India force U.S. consulates to stop issuing H-1B visas, or other specialized visas, by claiming it amounts to poaching of important human resources? Edit: I used 'brain drain' as just an example. What I wished to know was how much control can a country exert on other countries' consulates on its land. Barring shutting down a consulate, what can a country do to prevent issuance of visas? | I assume the goal here is for nation A to prevent citizen A1 from travelling/emigrating to nation B. It can be done, but not in the way you're suggesting. It can be achieved by instituting exit visas. Wikipedia reference: Nepal requires citizens emigrating to the United States on an H-1B visa to present an exit permit issued by the Ministry of Labour. This document is called a work permit and needs to be presented to immigration to leave the country. Which is essentially what you're after, if I understand your question correctly. In short, nation A cannot tell nation B to not grant a particular visa. But nation A can require citizen A1 to get nation A's explicit permission to travel to nation B. However, as you can see in the list of examples on the Wikipedia page, exit visas are not all that common and are often linked to fascist or authoritarian regimes (which means that imposing an exit visa is liably going to raise a few eyebrows in western society, to say the least). I was genuinely surprised that Nepal still has an exit visa; I initially wrote my answer under the assumption that I would only find historical occurrences. | Not necessarily The laws of each country will apply to the assets held in that country. In some jurisdictions, inheritance is mandated by law and there is no freedom for a testator to determine who inherits what: Pakistan is one such jurisdiction. In Pakistan, if the deceased is a Muslim, then inheritance proceeds according to Islamic law and the will is irrelevant. If they are not a Muslim, then the law of their domicile jurisdiction applies - so for a resident of say, California, Californian succession law applies including following a will if one exists. South African law recognises freedom of testation (subject to certain limits) so a foreign will will generally be followed. | The example that you have given in your question regarding the travel ban does not actually constitute contradiction since one federal judge chose to issue an order but the other does not, thus the actions taken does not contradict. However, what you described actually happened before with the first travel ban (EO 13769). A federal judge in Boston, Judge Nathaniel Gorton, refused to extend a temporary injunction against the travel ban. However, another federal judge in Seattle then granted a temporary restraining order Friday that’s effective nationwide. As this CBS article states: Meanwhile, in a seemingly contradictory ruling, a federal judge in Boston refused to extend a temporary injunction against Mr. Trump’s travel ban. U.S. District Judge Nathaniel Gorton late Friday declined to renew an order prohibiting the detention or removal of persons as part of Trump’s executive order on refugees and immigrants. In this case, Judge Gorton declined to extend a temporary injunction against the travel ban. So, legally, nothing changes since he did not issue any new order or temporary injunction; the EO (travel ban) will stay as it is and when the existing temporary injunction expires, the EO will be back in force. Even yesterday, the federal judge in Hawaii issued a temporary restraining order which blocked the travel ban from being enforced. However, the federal judge in Maryland only blocked part of the travel ban, ruling that the most important section — banning travel from half a dozen countries — could not be enforced. The Hawaii court ruling would still "take precedence" since the temporary restraining order blocked the whole EO. Thus, it can be seen that there are mainly three ways for federal judges to rule: Grant a temporary restraining order for the travel ban. Block part of the order. Decline to issue any order; the travel ban will remain as is. To conclude, whenever a federal judge issues a temporary restraining order, it will always be in force as it would "overwrite" the other federal rulings in which the judges blocks part of the order or do not issue any order. | Child custody (and alimony) are determined by state courts, so the exact details are state-dependent. There is no legal basis for a person preventing thrie former spouse from moving (assuming the host country doesn't deny a visa), but the courts would be involved in determining whether the child can be taken along: parent A cannot legally just pack up the kids and bolt. When parents don't agree, then the court must determine what outcome is in the best interest of the child. If the children want to move, that counts in favor of them moving ("counts in favor" does not mean "decides the matter"). If the moving parent doesn't have viable employment prospects abroad, that counts against them moving. The amount of time each parent spends with the children also matters, not to mention the laws of your state (here is what the California courts say: "Move-Away" Situations). Generally speaking, the moving parent has to provide notice, then the non-moving parent has to file a legal action to block the move. Your attorney will discuss all of the relevant considerations with you. The fact of a parent moving to another country does not per se invalidate court-ordered support, but the court can modify an order if circumstances warrant (there's no obvious reason why moving to France would result in modification of such an order). | What does it accomplish? It guarantees that all corporations doing business in New York can be served. (A company's having an agent for the service of process does not prohibit people from serving the corporation directly. The secretary may be "the agent upon which process may be served" but is not "the sole agent upon which process must be served." And besides, process need not be served on an agent; it can be served on the company itself, at its office or on one of its officers.) With this requirement, New York makes it impossible for a company to avoid service of process by closing or moving its offices, by sending its officers and employees out of state, or by making itself unavailable by any means. No matter what steps a company might take to avoid service of process, the process server can always resort to serving the company's agent: the Secretary of State. | I don't know about that particular case, but you are basically right: In Switzerland, if you want to apply for citizenship, you apply for it in the municipality first. Everybody having the citizenship of the municipality has the swiss citizenship as well. In theory, the canton and the state also have something to say, but that's irrelevant for most applications. This has historic reasons, but going into the details is beyond the scope of this question. Fact is, that every municipality has its own rules, about when and how applications are handled. This has been unified a bit in recent years, but some things still differ. That is for instance, how many years you need to have lived there or who decides your application. There were municipalities (actually most) where the final decision was made using a public vote. This practice was declared illegal by the federal court some years ago, because becoming a citizen is a formal governmental act, and as such a reason needs to be given for turning an application down. This is inherently impossible with a vote. Since that law decision, most municipalities have shifted the responsibility to a committee for citizenship applications. The public can still bring in arguments, but they need to be justified (ie. if somebody knows about the applicant being a wanted criminal somewhere). Consequently, you can now call for a court to check whether the given reasoning is correct and just, if you are turned down. | The private organizations, in difference to international organizations (the organizations, members thereof are the countries) or the countries are not subjects of international law. They are also not a subject of criminal laws, so they technically can't break the law. The people can. If the actions of such organizations will break some laws, the people staying behind that organization will be made responsible. Either it will be single individuals, or the whole organization might be declared criminal (such as mafia or a gang) and there everyone, including stakeholders or casual employees/contractors might be subjects to interrogation, arrest and sentence. As for the problem you describe, when the organization made something illegal under one jurisdiction, and the stakeholders are sitting in other country, where such actions are not illegal, they might only partially be safe. They might be arrested not only in the country where the legal actions are taken, but also in third countries, that have extradition agreements with that country. | There are two major relevant judicial decisions: the International Court of Justice's advisory opinion on whether Kosovo's unilateral declaration was in accordance with international law, and the Supreme Court of Canada's opinion on whether Quebec had the right under international law to unilaterally secede. Judicial opinions aren't terribly common, because questions of secession are usually handled through force of arms. Although the Canadian decision was made by a national court, it's considered a significant work of reasoning and is often cited on this issue (for instance, it was heavily cited in briefs before the ICJ). The ICJ held that Kosovo's unilateral declaration of independence was in accordance with international law. However, this did not mean that Kosovo could unilaterally secede. As the ICJ noted, they were not asked what the legal consequences of the declaration were and they were not asked whether Kosovo was independent. They were only asked whether making the declaration violated international law. The ICJ found that in general international law does not prohibit unilateral declarations of independence. In particular situations they might violate other rules of international law (e.g. if they're tied to an unlawful use of force or violation of peremptory norms), but in general a unilateral declaration of independence is not illegal. Again, though, the ICJ took pains to emphasize that they were not making any decisions about the right to secede. The case was only about announcing that a country was seceding. The Supreme Court of Canada's ruling, in contrast, was about whether actual secession was allowed. The court found that it was not, under either Canadian or international law. While international law creates a right to self-determination, that right typically only justifies secession in colonial empires. In general, a people is meant to achieve self-determination in the state they reside in. When a people is fully integrated into the life and governance of their state, they are not being denied self-determination. They might not always get what they want, but if two people disagree then someone is always going to be disappointed. The court held that A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self‑determination in its internal arrangements, is entitled to maintain its territorial integrity under international law and to have that territorial integrity recognized by other states. |
Can I disclose terms of a settlement when I don't accept it? I've been involved in a Mass Tort lawsuit against a drug company for several years. Recently, a confidential settlement agreement was reached between the law firm representing me and the drug company. I don't intend to agree to the settlement because the terms are simply unacceptable. My question is, if I don't accept this agreement and I cut ties with my lawyers, am I under any obligation to keep quiet about the settlement terms? The case is being tried in New Jersey, but I'm located in another state. | Probably not. It appears that in the case in question, your lawyers, while they were representing you, agreed to a protective order that kept certain information including settlement offers made to them by the opposing parties' lawyers (even if those offers were rejected) confidential. You are bound by the agreements made by your lawyers if they are your lawyers at the time, even they later cease to be your lawyers. So, if you were to make the disclosure of this information subject to a protective order, the court involved could hold you in contempt of court and issue sanctions (including fines and incarceration) for failing to honor the court order to seal the case, because this protective order was binding upon you, because you agreed to it through your lawyers who were acting as your agents at the time. The fact that you are no longer represented by those lawyers doesn't vacate the protective order. CAVEAT: This is an interpretation of the facts made with incomplete information. A truly reliable answer would require review of the exact documents in the case filed with the court which is beyond the scope of Law.SE. | Read the terms It’s quite likely that, if you took this to court, the employer would be liable to pay your daughter interest on the underpayment and possibly be fined by the state for failing to follow the law. The terms probably are offering to pay the back pay with no interest and your daughter agreeing to confidentiality about the breach. Probably - I haven’t read them. In other words, they’re asking her to sign a contract saying she gets $XXX now, and can’t make any further claims against them. Such releases are commonplace when setting a dispute and there’s probably nothing underhanded going on. Probably - I haven’t read them. Because minors can void contracts if they are not in their interest, they want you, as her legal guardian, to also sign so that can’t happen. A relatively prudent precaution on their part. The alternative is to not sign the document and they presumably won’t pay. It will then be up to you whether to sue them which will cost you money, possibly more than you will get if you win. As to whether there is a dispute: they want your signature, you don’t want to sign - that’s a dispute. Any admissions they have made in their settlement offer are almost surely without prejudice, meaning they are inadmissible in court. If you want to sue, you would have to prove the underpayment without relying on their admissions. As stated above, maybe there is no underpayment. Only you and your daughter can decide if this is a good deal. | Attorney-client privilege is normally waived if a privileged communication is voluntarily disclosed. Submission of an attorney-client privileged document to a judge to review in camera does not waive the attorney-client privilege. Most of the case law involves inadvertent "oops" style disclosures of attorney-client privileged documents (keep in mind that big lawsuits often involve exchanges of terabytes of data that have to be reviewed page by page for attorney-client privileged materials by armies of junior lawyers and paralegals, so mistakes are inevitably made now and then), which is a somewhat convoluted area of law. Basically, if it is caught soon enough, the person accidentally receiving it can be ordered to not look at it any more and to destroy it without keeping copies if it remains within an accidental recipient law firm or government agency's possession and has not been further disseminated into public records yet. In particular, such documents can't be presented as evidence at trial if the mistake is caught before it is too late to correct the mistake. In those cases, the legal system does its best to pretend that the mistaken disclosure of attorney-client privileged materials never happened. | In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing. When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days. When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point. You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial. | If I may paraphrase the scenario: The customer has a contract with the insurer The customer is contemplating undergoing a certain procedure and is unsure if it is covered under the contract The customer calls the insurer to ask this specific question The insurer says "yes" The customer undergoes the procedure The insurer refuses to pay on the ground that it is not covered under the contract. Let's put aside issues of evidence and what can be proved and assume these facts are not in dispute. There is no question that the contract has been renegotiated; it hasn't. This avoids the necessity of considering if the insurer's employee has the authority to do this or it the customer can rely that they do even if they don't. There are two possibilities: The procedure is covered and the insurer must pay under contract The procedure isn't covered and the insurer must pay under the tort of negligent misstatement. The insurer is vicariously liable for the actions of its employee. The insurer owes a duty of care to a customer who asks such a question to answer it correctly. It is foreseeable that the customer would act on the insurer's advice and incur costs that they may have avoided if the correct advice had been given. Nothing is ever certain in the law but this is as close as you can get. | An agreement to agree is void There is a multitude of case law on this point. If the NDA was not available to you when you signed the employment contract and the term was couched as you describe; then the term would be unenforcable. That is, your employment contract would be binding except for that term i.e. you could not be compelled to sign the NDA. Now, there may be a requirement on you to negotiate in good faith in an attempt to find an NDA you can agree to but if you can't find one you can't find one. You cannot (legally) be fired for this reason. Now, if the NDA was available, and you were told where to find it, and irrespective of if you did or didn't find it, you would be bound to the NDA. | None because the principle is Freedom to contract There is a general right of any being (natural like a person or even a company) to contract with anyone. Buying someone's service is a contract. A contract forms when: They offer something You offer something Both sides agree on it. (meeting of the minds) It is totally legal for a company to make wears a mask in our place of business a part of either being admitted onto the property or agreeing to contract with you. Noncompliance means as a result that they don't agree to serve you and don't offer to you. In fact, they explicitly reject to contract with you unless you wear a mask, which is their right unless there is a law that would specifically make that reason illegal. There are laws that reduce the freedom of contract, such as the civil right act (protected classes, such as religion, race, sex and more), the Americans with disabilities act (demanding reasonable accommodation), and labor laws (outlawing labor practices or limiting the amount of work or minimum payment) as well as anti-discrimination laws (establishing further classes). However note, that laws need to be written in such a way that they don't discriminate against the company either! One case where freedom to contract was attacked using an anti-discrimination law was Masterpiece Cakeshop - which was decided on first amendment grounds based on the rights of the owner: the law can't force someone to make a product he would not support the message of. Currently, there might only be some ordinance that bans mask policies in Texas, but it is dubious if that might be even an enforceable order from the Texas governor - Especially since OSHA just made adjustments to standards and mandates on the federal level - which include adjustments to respiratory protection fields. | If you dispute the assertion, yes At this point the company has made an unevidenced assertion. You can either accept that assertion or dispute it. The exact dispute resolution terms will matter if you do dispute it but, notwithstanding, they will all necessitate that each party provide some evidence to support their position. That will either convince the decision maker (you in a negotiation or mediation; someone else in an arbitration or court) or it won’t. In a determinative forum like an arbitration or court since they are relying on the assertion, they have the burden of proving it on the balance of probabilities. In this case, they would have to prove the transformer failed, that it failed because of the weather and that that event falls within the scope of the specific force majeure clause. |
Is social security constitutionally protected public debt? Section IV of the 14th Amendment to the US Constitution says "The validity of the public debt of the United States... shall not be questioned." The Social Security trust fund is currently projected to run out of money in 2034, though there is still projected to be significant income into the social security system even when the trust fund runs out. Are the US's promises to make payments under the Social Security program constitutionally protected? Please consider 3 cases: Just before the trust fund runs out, Congress passes a law cutting benefits effective immediately. Congress does nothing about Social Security and the trust fund runs out. Government shutdown way before the trust fund runs out (e.g. over border wall funding). | No, it is not debt and you are not owed any money beyond what Congress decides to give you. Section 1104 of the act says the benefits are what Congress decides to give out. This was challenged in 1960 and upheld. To quote Wikipedia: Ephram Nestor challenged Section 1104 after he was denied Social Security payments as a deported member of the Communist Party. He argued that a contract existed between himself and the United States government, since he had paid into the system for 19 years. ... The Court ruled that no such contract exists, and that there is no contractual right to receive Social Security payments. Payments due under Social Security are not “property” rights and are not protected by the Takings Clause of the Fifth Amendment. The interest of a beneficiary of Social Security is protected only by the Due Process Clause. | The Hyde Ammendment prevents any federal funds from being used to pay for abortions. You can be certain that providing clinic space to provide abortions would be quickly challenged in court as a violation of the Hyde Ammendment. | A president can be personally sued, and does not enjoy universal immunity while in office, see Clinton v. Jones, 520 US 681 – in that case, Clinton was represented by private counsel. There are differences between that case and the instant hypothetical, the most prominent being whether such statements might be shielded because of executive privilege. The primary procedural question would be whether a potentially defamatory statement was made in connection with official duties. The limits of executive privilege are not at all clear. That kind of constitutional issue could involve the solicitor general. Let us assume that SCOTUS finds (somehow) that a particular statement is completely outside the ambit of executive privilege (separation of powers). Then it is not an interest of the US government to defend the personal interests of a defendant even if he in in office (whereas it is an interest of the US goverment to defend the official interests of POTUS), and private counsel would represent the defendant. Any settlement or award would be out of the defendant's pocket (as was the case in Clinton v. Jones). | No A state may not do that. The US Constitution Art. I section 8 says: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States. ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; Art I section 10: No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. The power to regulate interstate commerce and foreign commerce is exclusive to Congress, no state may exercise it. The power to tax imports and exports is only given in vary limited degree to states, and only by specific permission of Congress. The Interstate Commerce Clause has been interpreted to mean that a state may not favor its own citizens over citizens of other states in taxation or in commercial privileges, although it may restrict state services to state residents, or charge non-residents higher fees, as for tuition at public colleges. Even with the consent of Congress, or if passed by Congress, such a law might well be precluded by the Equal Protection clause. Congress may prohibit specific items from being moved in interstate commerce, or it may limit, license, or tax them. But all such regulations must be uniform across the United states, and may not apply only to a specific state. Regulation of interstate commerce can include regulation of purely intra-state transactions, if they are held to "affect" interstate commerce. This power is very wide-ranging. | Article 1 Section 8 appears to answer your question - only the Federal Government has the power to regulate the value of currency. Unilaterally forbidding the use of pennies as currency would be a regulation of their value (from 1 cent to 0 cents). A state government might be allowed to refuse pennies for the purpose of paying for a service in advance like a private business can, but like a private business are required to accept them as legal tender for the purpose of repaying debts, judgements, etc. Responding to the edited post, I'm inclined to say that the proposed plan is still "regulating" currency, in the same way that only the Federal government is the only entity authorized to destroy worn out currency (which it obtains by fair exchange). As Nate Eldredge points out, this may also violate the Commerce Clause of the same section, both in terms of interstate transactions and in terms of the exchange of currency between persons of different states and the implementing state. However, if it was implemented as suggested in comments, where businesses were required to exchange whatever pennies they receive with the state government for an equal amount of other currency, it might not run afoul of either of these clauses. This is probably a question the Supreme Court would have to decide, since a lot of hypothetical factors could come into play. At first glance, there doesn't appear to be any factual difference between a state holding pennies in storage indefinitely and the state holding any other currency in storage indefinitely, which they are allowed to do so long as they don't violate any part of USC Title 18, Chapter 17 (e.g., melt the pennies for the copper). On the other hand, the Federal Government could argue that the storage of pennies for the purpose of removing them from circulation is a form of currency regulation even if the action would otherwise be legal, or that the state's actions are impactful enough to affect interstate commerce even though they only directly impact commerce in the state and therefore Congress could pass a law outlawing the practice. | The US President is indeed bound by the Constitution, and indeed by the ordinary laws. Current Justice Department policy is that a sitting president may not be indicted. No court has ever held this, the US Constitution does not give explicit presidential immunity the way it gives limited immunity to members of congress (in the "speech and debate" clause). No sitting US President has ever been charged with a crime, much less indicted, so the matter has never come before a court. An old news story indicated that President Grant was stopped for a traffic offense (speeding, in a horse-drawn carriage), accompanied the officer to a police station, paid an appearance bond for the traffic court, and then failed to appear, forfeiting the bond. Even if this is accurate, no claim of presidential immunity was made, and no court decision was rendered. So no precedent was established by that event, one way or the other. Any President may be impeached and convicted, if Congress sees fit to do so. There is no enforceable standard on just what is and is not an impeachable offense. That is left to the sound judgement of Congress. Nor is Congress required to act if it chooses not to, no matter how strong the evidence may be. Nixon's Vice President , Spiro Agnew, was investigated for alleged corrupt practices. It appeared that Maryland (where he had been Governor) was ready to indict him on several charges. He was persuaded to plead "no contest" in a plea bargain to a single count, and was sentenced to probation with no jail time. At the same time, he resigned as VP. No one knows what would have happened had he continued to insist on his innocence, and claimed before the court that a sitting VP could not lawfully be indicted (a claim he had made earlier in the process). Even assuming that a sitting President cannot be indicted or tried, nothing prevents such a person from being charged and perhaps convicted after his or her term has ended. The constitution explicitly says that if an official is impeached and removed from office, there may be a subsequent trial on any relevant charges. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Art I; section 3; clauses 6&7) Whether any statute of limitations would be tolled (paused) while the president was in office cannot be determined until and unless the matters comes before a court for a decision. Note that the US Constitution imposes few duties or obligations on individuals. it is mostly concerned with specifying he structure of the federal government, and the powers of and limitations on its various parts. It also specifies the relations between the Federal and State Governments. It also declares a number of rights held by individuals, most of which can be regarded as limitations on the power of the government. If the President were to be accused of a crime, it would almost surely be one established by statute, not by the constitution directly, because treason is the only crime defined directly by the constitution. However, the official acts of the president are clearly limited by the Constitution, and in a number of cases have been held void as being unconstitutional. One of the more famous cases is Youngstown Sheet and Tube vs Sawyer 343 U.S. 579 (1952), also known and the "steel mills seizure case". During the Korean War, President Truman attempted to take control of a number of steel mills to stop a labor dispute, on the ground that this was hindering the national defense. The US Supreme Court ruled that he lacked the power to do this, and that his action was void. | This is a civil case, taking away your freedom is only for criminal offenses. Not paying your bills is not a criminal offense. It is up to the creditor to look for your assets, etc. A court can make you show up and answer questions about your assets and income. While you are in court the judge can make you give your gold watch to your creditor. Outside the parameters of the question there are circumstances like failure to pay child support when you do have the funds that can lead to incarceration. In some places you can be jailed for contempt of court if the court requires your presence to let the creditor have the ability to try to get access to your assets and you do not show up. | The Limitations Act of 1980 and its predecessors apply to civil actions brought by private individuals. It is not a criminal statute of limitations. I will answer with regard to civil cases, rather than criminal ones. Section 40 of the Limitations Act of 1980 incorporates by reference a schedule of transition provisions that govern this question, and when a cause of action is not governed by the 1980 Act it usually defaults to the predecessor 1939 Act. The problem is both bigger than just the fraudulent breach of trust unlimited statute of limitations under Section 21 of the Act, since the deadline only runs from when an action accrues that can be long after the act giving rise to the claim actually happened, and smaller, because the act (and also its predecessor 1939 act) allow statutes of limitations to be extended for equitable reasons under certain circumstances. The 1881 Limitations Act, Section 27 had an exception to the general rule for concealed fraud tolling the statute so long as it was concealed, which probably carried over into the 1939 Act. Section 9 of the transition provisions states in the relevant part that: (1)Nothing in any provision of this Act shall— (a)enable any action to be brought which was barred by this Act or (as the case may be) by the Limitation Act 1939 before the relevant date; The 1939 Act limitations ran from when the act was committed, not when it was discovered, until the 1963 Act changes that. A full analysis of the breach of trust issue is found in this law review article. |
Why are the promises President Trump made on the travel ban not relevant to determine whether the executive order itself is constitutional? Today (26th of June 2018), the SCOTUS decided that the Sept. 2017 Executive Order banning travelers from several predominantly Muslim countries from entering the United States (the "Travel Ban") does not violate the 1st Amendment of the US constitution. Notably, the SCOTUS declared that the campaign promises that the President made during his campaign rallies of banning all Muslims from entering the country (paraphrasing here) should not be taken into account when deciding whether this order is violating the 1st Amendment. As someone who doesn't live in the USA and isn't a constitutional lawyer, I don't really understand that. If I say "I'm going to kill the guy who slept with my wife" and 3 days later I jump out from behind a tree and kill him, that's considered premeditation, which increases the severity of the murder charge. However, if the President says "I'm going to ban all Muslims" and then a year or so later does something to that effect, why is it not taken into account? | Because the nations that made the list (which was modified at the time of the SCOTUS hearing) were selected based on their ability to provide the US with documentation for vetting of immigrants (or rather their lack of an ability), not religion, and the courts give the legislature (Congress) and the executive branch (President) wide discretion when matters of security are involved as they are related to foreign relations where the Judiciary have very limited powers. The specifics of the law which the Executive order modifies do not limit the President beyond a bona fide reason for which the selection was made. The court also ruled that the document contains no mention of any religion specifically or any matters pertaining to religion, and that several nations on the list have no Muslim Majority (they cite 2, but I am only aware of Venezuela being on the list). Additionally, the nation of Chad was removed from the list after their standards were brought up to scratch. In the original opinion, they did say that the campaign remarks were considered in that they pointed to the plaintiff's standing in the case (you need to show a potential harm is inflicted on you by the law in order to get a court case. Or in other words, I cannot ask the court to hear a case on rights of a vampire, because I am not a vampire) but found that the request to probe for malice in the minds of the President and his staff was not an area they could tread as there was a good reason for the law and several prominent Muslim Majority nations were not included. Basically, if the government could show that the order was made by some objective standards that neither favored nor disfavored a religion, then it is not a violation of the first amendment. For five of the justices, the government satisfied this requirement.* *Note, I am still reading through the ruling... my PDF of it keeps crashing and I lose my place. | Perhaps. The relevant law is assembled into notes on 3 USC 102. The original act of 1963 defines President-elect in this manner: (c) The terms 'President-elect' and 'Vice-President-elect' as used in this Act shall mean such persons as are the apparent successful candidates for the office of President and Vice President, respectively, as ascertained by the Administrator following the general elections held to determine the electors of President and Vice President in accordance with title 3, United States Code, sections 1 and 2. There is no specific statutory provision directing the Administrator of the GSA to ascertain who is that President-Elect. The administration is apparently taking a position similar to that taken by the Clinton administration, that states determine who has been elected, and the states have not officially determined who has been elected: nor has a candidate conceded. If a court orders the Administrator to make the ascertainment, I expect that the administration would appeal the ruling up to the Supreme Court. This letter, addressed to the Administrator, gives the legal rationale. | While there is an act that President Trump and his supporters are citing, titled the Presidential Records Act (PRA), to accuse House Speaker Pelosi of breaking federal law, it is important to understand what actions the law accounts for. The act mandates that the President of the United States preserve records and other laws governing the federal government. This serves as a form of checks and balances to prevent the president and his advisers from shielding documentary information from public view. The act is fairly new, as it was passed in 1981. It is important to realize that this law does not apply to print outs or widely circulated documents. Moreover, the copy of the State of the Union that she was given is not a governmental record. Therefore, House Speaker Pelosi did not violate the Presidential Records Act, nor any other federal law. However, it is open to debate whether Pelosi's action was appropriate, though I will not supply my opinion on that matter. | The comments have already pointed out that the President of the United States is still a citizen, and all of the rights of a citizen are still protected for them. Additionally, the Administration is allowed to take policy positions which are antagonistic to a person or group's cause, even if that group is practicing their rights to express their views legally. To give a different example, the President and his administration may denounce the position of a group of Neo-Nazis marching legally. So, any argument that the President is acting in an official capacity while making antagonistic comments also probably fails, as the Administration is allowed to take a position on any issue they deem worth taking a stand on. As noted in another answer and in comments, the applicable laws appear to be 18 U.S. Code § 227, which provides for punishment of government officials who attempt to influence employment decisions through official acts for political purposes, and 42 U.S. Code § 1983, which provides for civil action when a person deprives, or causes the deprivation of, another person's rights under color of law. 18 U.S. Code § 227 likely does not apply for two reasons The President may show that his conduct was not purely for political purpose The official statements made do not qualify as official acts per McDonnell v. United States, as they are not a decision or action on a "question, matter, cause, suit, proceeding or controversy"; that question or matter must involve a formal exercise of governmental power, and must also be something specific and focused that is "pending" or "may by law be brought" before a public official 42 U.S. Code § 1983 might apply if the official statements were found to be acting under color of law, but I think the statements made so far will fail to meet the qualifications for this statute. Blair v. Bethel School District gives three qualifications for conduct that would allow recovery under this statute: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. The President's and Administration's official speech appears to fail the second criteria. First, it is questionable whether it qualifies as an "Adverse Action" - in Blair, as well as Hartman v. Moore and Gibson v. United States, the adverse action against the Plaintiff caused actual damage or indignity. However, even if we assume the official speech qualifies as an adverse action for the purposes of the statute, it still appears to be permissible for effectively the same reasons as the first and third arguments presented in the decision: First, the adverse action Blair complains of was a rather minor indignity, and de minimis deprivations of benefits and privileges on account of one's speech do not give rise to a First Amendment claim. The actual effect of the Administration's speech has a minimal direct effect on the players it speaks against. The decision further states: The most familiar adverse actions are “exercise[s] of governmental power” that are “regulatory, proscriptive, or compulsory in nature” and have the effect of punishing someone for his or her speech Official speech by the Administration is not "regulatory, proscriptive, or compulsory in nature." While this is not a complete definition for "adverse action," it gives a sense of severity, which official speech does not appear to meet. Additionally, the President's right to speech, and the Administration's authority and need to make official speech as directed by the President is a competing interest in this case, as was the interest of the Board in Blair: Third, it is significant that Blair isn't the only party in this case whose interests implicate First Amendment concerns. To the contrary, we assume all of the Board members have a protected interest in speaking out and voting their conscience... The decision does note that: The point isn't that the vote against Blair was protected speech simply because it was expressive. Almost all retaliatory actions can be said to be expressive, including those that are manifestly unconstitutional. But, while Blair certainly had a First Amendment right to criticize Seigel and vote against his retention as superintendent, his fellow Board members had the corresponding right to replace Blair with someone who, in their view, represented the majority view of the Board. Similarly, it's probable that a court would find that the President's right to speech and their Administration's corresponding authority to speech against the players' right to protest is equally weighted or even weightier, such that stifling the official speech is as bad or worse than the alleged chilling effect of the speech. Some examples of things that clearly would fall afoul of 42 U.S. Code § 1983 would be the President or the Administration misappropriating funds to use to pay NFL teams not to hire players who kneel during the national anthem, or signing an Executive Order preventing players who kneel during the national anthem from playing - in both cases, they are taking actions which fall outside the powers of their office, which would qualify as acts made under color of law and clearly chill the players' First Amendment rights. | Actually this is the only SCOTUS ruling on Impeachment because of what it legally means with respect to SCOTUS and impeachment. Namely, Impeachment is a congressional power and not a judicial one that has no punishment beyond the removal from office upon conviction and that therefor it is not a matter that is Judicial. That is a fancy way to say that SCOTUS or any lower court may not hear appeals rising from the outcome of Impeachment. Because of this, it's unlikely to hear any SCOTUS case as to the matter of impeachment and the only outstanding question they could likely hear is "Who can hear an Impeachment Trial for the Vice President?" but thus far none of the 19 impeachment trials have heard involved a vice president. Nixon v. United States basically held that in matters of impeachment it is the court's position that it is likely to respond to this hypothetical with the legal ruling of "not my monkeys, not my circus" (note: not legal jargon). With that said, this makes the U.S. senate the highest court in the land when it comes to precedents set by impeachment cases. The very first person ever impeached was a U.S. Senator, who was expelled by the Senate the same day the House voted on Articles of Impeachment. The decision not to have the trial did establish some notable precedents: first, Impeachment and conviction are all about removing an officer from office and if at anytime before conviction the officer is removed by other means, the process is stopped as it is moot. Second, and more important, is that members of Congress are not "impeachable" officers as both houses have methods that allow them to expel members by vote. This means that the only people who can be impeached are executive officers (the person who is currently president, vice president, and cabinet secretaries, any other office that is appointed by the president and confirmed by the senate, and federal judges) and that a conviction of impeachment does not bar one from holding another federal office unless the senate enacts an additional punishment after the conviction barring that person from federal office. They cannot bar one from state office. Finally, House and Senate Rules have instructions for procedures in their part in impeachment. The commonality between both is that impeachment takes precidents over all regular buisness so once articles are put to the floor, there speaker must hold the vote with in a certain window of time (three days, I think) and the Senate must hold the trial as soon as possible, though will honor reasonable delays as per the impeached officer's right to delay. As a final note, and because it wasn't clear in the question Nixon v. United States is often confused with another case (United States v. Nixon). The latter one did indirectly relate to impeachment in that it was related to President Nixon handing over evidence to the comittee investigating possible impeachment articles against Nixon, and because of that ruling, Nixon handed over the evidence and later resigned to avoid the Impeachment. The former one not only didn't involve anything related Watergate, it also wasn't related to President Nixon at all, but a (former) Federal Judge Walter Nixon, and specifically was heard because Judge Nixon happened to be the first Judge impeached by a Senate commitee as the jury rather than the full Senate, following a rule change that only held full senate as jury for the President and Vice President and a committee for anyone else. The final rule is that only the President is constitutionally mandated to have the Chief Justice of the Supreme Court act as the judge in an Impeachment trial, while the presiding officer for all other cases is either the Vice President (acting in his role as President of the Senate) or the President pro Tempore of the Senate (acting in his role of "Guy Keeping the Vice President's Seat in the Senate Rotunda Warm" (not technical Jargon)). Which is why the question of "who is the judge in impeachment of the Vice President?" a noodle baking question, and the answer differs from the Chief Justice to the Senate pr Tempore to the rarely serious argument of the Vice President himself. The best answer is that "It has never come up." | Your interpretation is correct. The constitution says that judges stay in office "until and unless they are impeached." That means that congress cannot impose a time limit on any judge's term of office. If it did so, it would be contrary to the constitution. The only grounds for removal are those to do with misbehavior. Therefore, judges have life tenure. | Before the election, can a lawsuit prevent the amendment question from being put on the ballot? No. Generally speaking, the constitutionality of an otherwise procedurally proper ballot initiative is not ruled upon until after it has passed (eliminating the need to rule unnecessarily on the constitutionality of failed initiatives). Of course, if someone tried to put it in the ballot when the existing law conditions for putting it on the ballot were not met (e.g. because a deadline for doing so wasn't met) that could be challenged in court by a party with standing to do so. If passed into the constitution, would a court still have the ability to rule the restrictions unconstitutional? Probably not. The constitution as newly adopted doesn't sound like it would forbid doing that. This seems to be the whole point of the constitutional amendment in the first place and it the amendment to the constition is approved, that requirement is gone. | The amendment restricts when a change in law takes effect. The amendment does not restrict all laws, just those "varying the compensation for the services of the Senators and Representatives". A law could be passed this session automatically increasing (or decreasing) congressional pay by 5% per annum, and could take effect after the 2022 elections have taken place in November. Like all constitutional amendments, we do not get an authoritative interpretation of the meaning of the words until someone sues someone else and SCOTUS says what it means. Shaffer v. Clinton, 54 F. Supp. 2d 1014 is a case almost on point, precisely over whether COLAs violate the 27th Amendment. The Executive branch (defendants) sought dismissal and certain Congressmen and citizens (plaintiffs) sought summary judgment, "asserting there is no genuine issue as to any material fact remaining in dispute and plaintiffs are entitled to judgment as a matter of law". The case was dismissed with prejudice without much mention of the merits the annual COLAs provided by the Ethics Reform Act of 1989 are not independent laws under the Twenty-seventh Amendment and that Adjustments to congressional salaries under the Ethics Reform Act are not discretionary acts of Congress. The adjustments are calculations performed by nonlegislative administrative staff, following a specific formula provided by Congress in the Act This provides a good basis for thinking that a future court would reach the same "failure to state a claim" dead end, but in lieu of something above the level of U.S. District Court, Colorado would be necessary to make the conclusion "a matter of settled law". What you propose does not require making more than one law, and then a bunch of administrative calculations that does not involve Congress. |
Can a city legally force a homeowner to remove their garden? Hypothetical: a homeowner received a letter in the mail from the city stating that said homeowner is being ordered to keep their lawn mowed such that the lawn did not violate the city ordinance about maximum grass height. This hypothetical letter stated that if the homeowner failed to keep the lawn mowed that the city would have the lawn mowed for him and charge him for the mowing service. In general, I wonder if the city is allowed to dictate how that property should look, but in thish specific case the problem is even trickier... Hypothetically, the homeowner actually uses the plants that grow in the lawn. He considers the entire lawn to be a garden and uses the plants in it for various purposes, including but not limited to a food source. So there are several issues with the order received: The homeowner does not care what the neighbors think of the yard. He likes it the way it is and feels he should be able to keep it how he wants as long as it is not causing the neighbors any injury to their person or property. a. Does the city have authority to make demands based on personal opinions (even if held by the majority) about what looks pleasant? The homeowner wants to keep growing the garden. To him, it very much is a garden. a. Since it is a used garden, does that cause the city to lose any legal authority to do this which they may otherwise have had? The homeowner does not want some mowing service person destroying the garden. a. As soon as the homeowner notifies the city that this is a garden, does the city still have any legal authority to destroy that garden as they have threatened to do? The homeowner does not believe the lawn-garden is causing any injury to the neighbors or their property and not tall enough to harbor critters. Can the city legally compel someone to destroy their garden? This is considered from the point of view of the state of New York. Since that is (sort of) a yes/no question, if you need something broader to provide a good answer, perhaps consider: On what legal grounds can a city compel someone to destroy their garden? Does the city even need to provide a rationale, or are they legally justified by mere fiat? The closest case law I can think of was a case where a man had a sign on his property that a city ordered him to remove, but the court determined that the city had no authority to dictate what he could or could not write on his property. I don't think that case was New York, but I cannot find it again. Also that case may have been a first amendment issue which probably does not apply to gardens. Is there any law (case, state, federal, common, anything...) which could apply to the above scenario? | The city can do any of those things under any of the circumstances mentioned if a city ordinance duly adopted by the city council authorizes it to do so. A city may legislate by adopting any ordinances which do not violate its charter, state statute, the state constitution, or the U.S. constitution. If the city has any "rational basis" for its ordinance, which is an extremely low threshold that will not be found to be violated unless it is clear beyond a reasonable doubt that it has been violated, then it is constitutional, since it does not impair any particular constitutional right. Aesthetic concerns are a sufficient rational basis to meet the rational basis test for constitutionality. None of those sources in New York State prohibits a city from imposing a lawn and garden care ordinance, or forces a city to allow someone to grow food at their residence. Destroying a garden is not a "cruel and unusual" punishment for violating a city ordinance under the 8th Amendment to the United States Constitution or its state constitutional equivalent. | In the United States, the government has, multiple times, destroyed homes while trying to catch a fugitive. And the homeowner sometimes makes a claim in federal court that this is an unconstitutional taking without compensation in violation of the 5th Amendment. In Lech v. Jackson, the 10th Circuit decided that the police and city were not liable for destroying a house while trying to arrest a criminal who had fled there. The Supreme Court declined to hear the case. But in Baker v. City of McKinney, Texas, less than 3 months ago, a district court declined to dismiss a case in which police destroyed a home to catch a fleeing criminal. Allegedly, in this case the police were given a key to the door, a garage door opener, and the code to the back gate by the homeowner - and instead of using those, they used explosives on the garage door and used a BearCat to knock down the fence and the front door. I'm not sure to what extent those facts, perhaps showing that the scale of the destruction was unnecessary, matter. To the best of my knowledge the case is still ongoing. | I have bad news. California's vandalism law prohibits maliciously: defacing property with graffiti defacing property with inscribed material damaging property destroying property Chalking the sidewalk probably doesn't sound very malicious, but maliciousness includes “an intent to do a wrongful act, established either by proof or presumption of law.” So the questions is whether you intended to do a wrongful act -- meaning that you intended to do the act, which happens to be wrongful, not that you intended to act wrongfully. So unless you drew on the sidewalk accidentally, the malicious-intent requirement isn't going to help you. So then you have to ask if your conduct is described by the statute. In Mackinney v. Nielsen, the Ninth Circuit said that sidewalk chalking did not violate the law, but California has since amended the law to add the "deface with graffiti" language. I haven't seen any chalk cases since then, but another case, In re Nicholas Y., from the Second District, dealt with someone who used a marker on a window. He argued that it could be easily erased, but the court said it was still vandalism because: it "mars the surface with graffiti which must be removed in order to restore the original condition" the definition of "deface" "does not incorporate an element of permanence" "marring of the surface is no less a defacement because it is more easily removed." Given that language, I'd argue that the vandalism statute includes sidewalk chalking. But one important element here is that most sidewalks are owned or controlled by the government, so any effort to restrict "expressive conduct such as writing with chalk" (Guilliford v. Pierce County) expressive activity" there must comply with the First Amendment. The government has varying degrees of latitude on the restrictions it can impose, depending on the character of the space involved. So in a courtroom, whose function is incompatible with free-wheeling public debate, a judge can set quite a few rules about how people may speak. But sidewalks are considered a "public forum," where the government's ability to regulate speech is a lot more limited. So how does the First Amendment apply? There's a D.C. Circuit case (Mahoney v. Doe) dealing with abortion protesters who wanted to use chalk on the streets and sidewalks outside the White House. Police told them they would be arrested for violating D.C.'s defacement statute, so they brought a First Amendment challenge. The court upheld the law, saying that it satisfied all three prongs of the public-forum test: The law must be content neutral, meaning that it prohibits conduct without reference to what is being said. The Court said the defacement statute was content neutral because people could be prosecuted regardless of what they wrote or drew. The law must be narrowly tailored, meaning that it serves a significant governmental interest and does not restrict more speech than is necessary to achieve that goal. The Court said the defacement statute was narrowly tailored because it served the government's interest in maintaining the aesthetic appeal of the area in front of the White House and didn't restrict any speech that does not deface public property. The law must leave open ample alternatives for communication, meaning that even if you can't express yourself in the way restricted, you still have meaningful opportunities to express yourself. The Court said the defacement statute law allowed adequate alternatives for communication because the group could still congregate, march, speak, hold signs, and hand out leaflets. There's an interesting wrinkle there in terms of whether the interest in aesthetics is heightened because we're talking about the White House, but generally speaking, aesthetic concerns can still justify speech restrictions. So the bad news is that unchaining your inner six-year-old may subject you to criminal liability. That leaves the question of whether you want to unleash your inner teenager and do it anyway. This could help put you in a frame of mind for making the decision. | I've gone through this enough times in Pennsylvania to paraphrase the law in this state: If a tree falls it's nobody's fault, unless the tree's owner was given credible advance notice that the tree posed an exceptional risk of failure, in which case the owner is liable for damage it causes if it fails. (For purposes of liability, a tree is "owned" by the owner of the ground where the trunk of the tree enters earth.) In the scenario you describe: A tree owned by your neighbor has not yet caused significant damage, but has been so structurally compromised that it poses an exceptional risk to your property. The standard course of action in such a circumstance is to promptly and formally notify the owner of that fact, and for the owner to remedy the risk. (In this case, it sounds like the only practical remedy is removal of the tree.) As a practical matter, the owner might be able to get an insurer to cover the cost of removal before it does more damage. But that's their problem. As a matter of expedience, you might also notify your insurer, since if the tree does end up causing significant damage to your property, you could subrogate your claim through your insurer. As a further matter of expedience: The township may have codes requiring landowners to address hazardous trees. Thus, if the owner does not promptly remedy the peril you could also notify the township. | In Vancouver, this provision is part of the Protection of Trees Bylaw 9958. The requirement for replacement trees is in Section 6 (PDF). In Toronto, trees are regulated under Section 813 of the Municipal Code (PDF). Private trees are discussed in Article III, which says that a permit is required to injure, remove or destroy a tree. Section 10 B says that as a condition of issuing the permit, the General Manager may require replanting or similar alternatives. | Approach the neighbor in your yard and ask him to leave. You are the tenant, you have full rights to do so. Once he refuses to leave he is a trespasser and you can call the police to take care of him, let alone if he makes any threats. Regarding the landlord, just ignore them and take care of the yard and the house as the lease terms bind you. Require them to give 24 hour notice before any appearance as the lease terms bind them. | Generally, if someone asks you to leave their property you have to leave*. Just because a place is owned by the public, doesn't mean anyone can go there any time they wish. Military bases, firehouses, and jails are owned by the public, but many of these have limited access to the public. It may be open to the general public, but that does not mean restrictions cannot be put into place, either on times, or activities, or individuals. For example, public parks often have time and activity restrictions; schools have the power to restrict individuals from their premises, either specifically or by general category. As a general point of law, the owner of any property, or their agent, can order anyone without the right to stay (e.g. not a co-owner or tenant), and that person must depart, otherwise that person is tresspassing. The Social Service Administrator is almost certainly an agent of the controlling entity that owns the property. Thus their demand that you leave the premises is enforceable, unless you have a non-revokable right to be in that space. *As user Justaguy points out there are some exceptions. Most notably, police can some times enter a property uninvited or against the owner's wishes (such as under emergency circumstances or with a warrant). | I am not a lawyer, I am not your lawyer, I am unfamiliar with the jurisdiction I demand you give me your hat! You're not going to, are you? The point of that is that you are not obliged to do anything just because someone demands that you do. Now, if I had a court order that required you to give me your hat ... It appears that there is some confusion over who owns some land in Nebraska. This is a problem; it is not your problem. From my understanding which is entirely based on this: A warranty deed is a type of deed where the grantor (seller) guarantees that he or she holds clear title to a piece of real estate and has a right to sell it to the grantee (buyer). you would be extremely unwise to sign such a deed since it is in no way clear that you (or anyone) does have clear title. Now I take it that you are not interested in owning land in Nebraska and even less interested in getting into a legal battle over it. If that is the case then I suggest that you consult a local lawyer and ask for his advice on the following plan of action: You and your wife will renounce any claim that you may have if: You do not guarantee that you have any claim or title, The person to whom you are making this grant indemnifies you against any legal action that may result, They will prepare the documents, Your lawyer will review them, They will reimburse you for your lawyer's fees. Come back and tell us how this works out. Edit to address subsequent questions Can you be responsible for costs? Well, anything is possible but it would be extremely unlikely. If there was any wrongdoing it was many years ago by someone else! If you approach this in a reasonable way and attempt to assist in reaching a resolution (so long as it doesn't cost you time or money) then it is highly unlikely a court would award costs against you. What about background checks? This would be a civil case. It would not appear in your criminal history. While it is a matter of public record all it really means is that you and someone else had a dispute that required a court to settle; happens all the time. |
At what I age could I sign a contract in Europe? I am 16 years old and interested in selling a website. After creating a thread in stack web development I wanted to ask a law question and that's why I got redirected here. I live in Albania, Europe and I would like to know; Am I able to sign a contract such as a buy-sell agreement by the age of 16 in Europe or in my country in specific? | Under Albanian law, the situation is somewhat open to interpretation. Law No. 7850 of July 29, 1994 (English translation) Part 1 Title 1 spells out the law of capacity. Article 6 sets 18 as the age of full majority: The person who reaches eighteen years old wins the full rights so that by his acts he gains rights and holds civil obligations. Articles 7-9 place limits on capacity for those who are younger. Those under 14 can act with approval of their legal representative, but unconditionally can be member of social organization, posses everything he gains by his work, to deposit his savings and to posses these deposits himself. Article 8 says say that he "who has not reached fourteen years old, has no capacity to act", and Article addresses 14-16 in the special case of fourteen to eighteen years who is unable to carry out his own affairs because of psychic diseases or mental illness is deprived of the capacity to perform legal transactions a court decision. These transactions can be performed through his legal representative. There is no law covering mentally-fit people between 14 and 18. The capacity to contract is neither affirmed (as for 18+) nor denied (as for 14-). Albanian Supreme Court decisions could be accessed and searched here to see if there have been any court rulings on disaffirmation of contract when one is between 16 and 18 years old. (Better translations here, Albanian original here). | The section you quote as clearly saying a thing is not clearly saying the thing. However: you cannot pass on or resell any license keys seems to say a thing clearly. However, one could argue that it's the sharer of the account who is in the wrong, and not the person receiving and passing on the account. I'd say that that piece of the agreement, combined with this: must not... let other people get access to anything we've made in a way that is unfair or unreasonable says that, yes, they are out of bounds. | Voidable Contracts First of all, it is not generally correct that "minors are unable to sign contracts". However, in many cases, minors can disaffirm contracts. (This is also called "voiding the contract, and such contracts are called 'voidable".) This means that, up until the minor becomes an adult, and for a limited time after that, the minor can cancel the contract and cease to be bound by it. There are some kinds of contracts to which this does not apply. Under the traditional common law, the major exception was contracts for the purchase of "necessities" for the minor or the minor's family. The term "necessities" included food, clothing, and shelter. Contracts for "necessities" could not be disaffirmed. In addition, contracts to purchase goods that had later been sold to a third party for value, and the goods delivered to that third party could generally not be disaffirmed. However, many US States and other jurisdictions have modified these rules by statute. California, for example, has specific laws governing contracts for minors engaged in art, film, and entertainment work and in professional sports. These laws spell out procedures that must be followed to make such contacts not subject to disaffirmance, including a court hearing and payment of a part (15%) of the earnings into a trust. See the Findlaw page "Is It Legal to Sign a Contract With a Minor?" which states: For most contracts, the general rule is that while it's not illegal to enter into a contract with a minor, the contract is voidable at the discretion of the minor. Voidable contracts are usually valid contracts and are binding unless the child cancels it. On the other hand, if the minor turns 18 and doesn't cancel the contract within a reasonable period of time, the contract could become binding and enforceable. The page goes on to mention some specific state provisions in Texas, New York, and California, none of which seem to be relevant to the situatiin described in the question. The page "Can a Minor Enter Into a Contract?" from HG Legal Services states: Many people who are under the age of 18 have some type of employment. Additionally, there are many children in the entertainment industry. Both California and New York have passed legislation that limits such a minor’s right to disaffirm the contract. Some laws allow courts to first approve the contract so that the infant cannot later attempt to void it. Additionally, contracting with the infant’s parent rather than directly with the infant can bind the child in some cases. Some states allow infants to work so long as they acquire a work permit. (Note that in legal usage "infant" means the same as "minor", that is, a person not yet adult. It does not mean a baby.) Note that if a minor disaffirms a contract, the entire contract is undone. The minor cannot pick and choose which sections to disaffirm (cancel). Goods or money received by either party under the contract must be returned, for example. When a transaction cannot lawfully be undone, then it may not be possible for the minor to void the contract. The possibility of disaffirmance means that one cannot rely on a contract with a minor in the same way one can rely on a contract with an adult. If it is important to have a binding agreement, such as an NDA, with a minor working as an intern or employee, one would need to take steps to ensure that the contract is binding. In some cases having a custodial parent approve such a contract might be useful. The specific steps that would accomplish this in a particular jurisdiction, if it is possible at all, are something that a lawyer could advise on. Labor law In addition to the issue of possible disaffarmance, in many jurisdictions child labor laws restrict and regulate any employment of a minor, and this will probably include a position as an intern. A work permit may be required, and the hours of work may be limited, particularly during the school term. Employee Status The question reads: I'm looking to hire a few minors as paid software engineering interns. [emphasis added] A paid intern is an employee. Minimum wage laws will apply, unless there is a specific exception 29 U.S. Code § 203 (part of the US Federal Fair Labor Standards Act (FLSA)) defines an "employee" in subsection (e) as "the term “employee” means any individual employed by an employer." with exceptions and different definitions for government workers, farm workers, volunteers, and certain other cases which do not seem tol apply here. Subsection (g) reads "“Employ” includes to suffer or permit to work." The US Department of labor "Fact%Sheet%#13:%Am%I%an%Employee?" further defines "employee" and gives tests for whether a persron is an employee or an independent contractor. It states that "most workers are employees". It gives various factors to consider in deciding whether a worker might be a contractor or an employee. These include: Work that is integral to an employers business is usually done by employees, not contractors. If a worker exercises managerial skills, and if so, if these affect the worker's chance of profit or loss, the worker is more likely a contractor The relative investment by the worker in facilities and equipment. If there is little, the worker is more ;likely an employee. Workers who must use independent business judgement are more likely to be contractors. Detailed control of hours of work and methods indicates that the relationship is more likely one of employment. Employment Under Copyright Law 17 USC 102 states that: A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned ... It part (1) of this definition that is relevant here The US Copyright office Circular 09 "Works Made for Hire" states: To help determine who is an employee, the Supreme Court in Community for Creative Non-Violence v. Reed identified factors that make up an “employer-employee” relationship as defined by agency law. The factors fall into three broad categories. Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work. Control by employer over the employee. For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants. 3 Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee’s payment. These factors are not exhaustive. The Court left unclear which of these factors must be present to establish the employment relationship under the work-for-hire definition. Moreover, it held that supervision or control over creation of the work alone is not controlling. However, all or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise). Examples of works made for hire created in an employment relationship include: A software program created by a staff programmer within the scope of his or her duties at a software firm [Emphasis added] ... The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the definition in section 101 of the copyright law, consultation with a lawyer may be advisable. If a work is made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author on the application for copyright registration. Respond “yes” to the question on the application about whether the work is made for hire Given all this, it seems likely that "paid interns" in the situation described in the question will be employees for purposes of copyright law, and their works in the course of employment will be works madwe for hire, with the employer being legally the author. This conclusion does not depend on an employment contract, adn an action by the intern to later void such a contract will not change the copyright status of the work. Conclusion The copyright of works (including software) produced by such interns is likely to be a work made for hire, with the employer being the author and initial copyright holder. This is true regardless of any contract, because a contract is not the key factor which makes a person an employee under US law, rather the nature of the relationship is. It would be wise to consult a lawyer with experience in employment law and the laws governing minors in the relevant jurisdiction before entering into such an arrangement. | Too old to be a lawyer? Legally: No. See Part 4 of the Age Discrimination Act 2004 which... ...makes it unlawful to discriminate against someone on the ground of age in respect of the following: (a) employment and related matters; (b) education; https://www.legislation.gov.au/Details/C2020C00283 | In German Law you need to give your agreement ("Willenserklärung") to a contract or in this case terms of service. This is done by telling the other part. In some cases this can also be implied by an action (example: putting your bottle of beer onto the cashiers table is an offer to buy this bottle). As a second criteria a "Willenserklärung" needs to be the exact will of the part that declares its will (the website user in this case) §§ 133, 157 BGB or that the other side (you) could only see so (not the case here as this mainly speaks of content). If you visit a website and there are terms of services, the "Willenserklärung" is only given when the user read and agreed to the terms. If he did not, the terms of service are not applied until the user agrees to them. So I would recommend to block the website until the user agreed (overlay) as you need to proof he did when in court. Additionally there are so called AGB's in Germany. Those are contracts that are used or planed for many (more than 3) uses and set by one side (you). This may apply here, so you need to follow a lot of other rules like making sure the user had access and agreed, then there are many content restrictions and so on... I recommend consulting a German Lawyer specialized on this topic as this is very complex and includes other German laws for Media too, depending on the content of your site and terms. Also note that everything said is only based on my own knowledge and can not be used as safe legal source. | If you operate from outside Germany but within the EU, it is generally sufficient to satisfy your own country's regulations. This is a foundational principle of the EU single market, though it's not quite realized yet and has exemptions for consumer protection purposes. However, the German TMG law which includes the Impressumspflicht explicitly enshrines this principle. So from the German Impressumspflicht perspective, you're good to go. However, you will not be able to operate anonymously, because of your country's laws. GDPR requires you to clearly state your identity and contact details in your privacy notice. If you engage in internet-based commerce, the EU eCommerce Directive will have caused your EU member state to pass legislation that requires you to disclose: your name the geographic address where you are established contact details incl an email address if applicable, registration numbers from trade registers or similar if applicable, your VAT ID Note that you must have a VAT ID for cross-border B2B sales within the EU. You state that you are not selling anything via your website, and are instead collecting payments via another website. What the consequences of this are would depend on the laws and caselaw in your jurisdiction, but you will have to make these disclosures on at least one of the two websites. About Germany going after bloggers who show ads: income from ads is taxable income, and operating a business requires registration. However, the German Impressumspflicht is rarely enforced by the state. Instead, other market participants (competitors) trawl the internet for potential violations and then send a cease-and-desist letter. They can do this because skirting legal obligations distorts the level playing field, which harms those competitors. There is a thriving cease-and-desist industry built around this, but it only affects businesses that operate within Germany. | I can answer for the U.S., if that's helpful. The general rule, in the United States, is that covenants not to compete are enforceable as long as they are reasonable. What constitutes "reasonable" varies from state to state. Factors considered generally include: What kind of actual harm will come to the business if you go to a competitor? In other words, is this rote language they include in every contract, or did they put it in yours because you know all the secret formulas and have the customer list memorized? Is it reasonable in time, location, and scope? Something preventing you from taking any job anywhere in the United States for ten years won't be enforceable; something preventing you from taking a job with the exact same title in the same industry in the same town for the next six months might be. The general rule at common law was that covenants not to compete were unenforceable restraints of trade; the fact that they're enforceable at all is later law created by each jurisdiction, and that means it's going to vary based on your specific jurisdiction. If you want to know whether it's okay to take a specific job based on a specific non-compete you signed, you will need to talk to a legal professional licensed in your jurisdiction--and even she may not be able to tell you for sure. | In California, you can get a driver's license at age 16, as well as a motorcycle license. This is similar to the minimum age in most other states. According to this article, California law generally permits minors to own property. There is a restriction for motor vehicles: Vehicle Code section 15500 says that a minor can only own a motor vehicle if they have a valid driver's license. But Lewis certainly could have satisfied this. So it would have been entirely possible and legal for Lewis to own, and ride, a motorcycle at age 16, provided that he had satisfied all the requirements (driver training, etc) and been issued a license. |
my landlord won't let me in on the day my tenancy begins, is this legal? My tenancy begins on July 1st, however as this is a Sunday my letting agent will not give me the keys on this day. I really need to move my stuff in on July 1st, can I claim that not allowing me to have the keys and move in on this day is in breach of contract? I live in the UK and will be renting this house with two other tenants | If you are prevented from entering the property on the day the contract says the tenancy begins that is a breach of the contract. If you suffer a loss as a result of the breach, you are entitled to be restored to the position you'd be in had the loss not occurred. For example, if you had additional removal fees and a hotel bill resulting from this breach, you'd be entitled to claim those costs. Generally the landlord would be liable for this. It is no defence that the agent is unavailable to give you the keys - they should have accounted for the day being a Sunday or started the term on a day when someone would be available. I suggest getting in touch with the landlord in the first instance, civilly explain the situation and ask if they can arrange for you to enter the property on the given date - they might not know what is going on. Keep a log/diary of your communications with the agent and the landlord. Make sure you have a plan B for somewhere to stay. Call Shelter too, for free advice. | Has this contract been translated (badly) from another language because the construction of the clause is cumbersome and confusing? Does the contract say that I can have guests over 1 night without charge? Without charge, yes. However "Without Landlord's prior written consent, Tenant has no excuse to accommodate ..." so you need the landlord's permission for overnight guests. If so does it only start charging on nights after the first? No, if a person stays more than 1 night (with the landlords permission) then this triggers the landlord's right to charge. See below for how much they can charge. Is it supposed to be 10% of monthly rent $137 per guest per night? "With temporary commendation, day-based, and additional 10% of rent each person is applied." The term is ambiguous, I can see three ways that this would be interpreted: If you have a guest who stays more than 1 night in a month they can charge 10% for that guest for that month (i.e. 2 to 31 days all for the same price). For 2 people for 2 days this would be $1,400 x 10% x 2 = $280. They can charge 10% of the monthly rent per night that the guest stays. $1,400 x 10% x 2 x 2 = $560 As, 1 except the rent would be pro-rata. $1,400 x 10% x 2 x 2/31 = $18.06 Assuming that the landlord put forward this contract the interpretation adopted in the absence of other evidence would be the one least advantageous to the landlord i.e. 3. However, there is other evidence - the landlord accepts that the rate is pro-rata - he has just failed to account for the 10%, so 3. again. How is overnight defined? Well, is it defined in the contract or by the law where you are? If not, it would take its normal English usage - "for the duration of the night". If they arrive before sunset and leave after sunrise the next day then they have stayed overnight. What if they came over at 9am and slept in the day? It says nothing about requiring your guests to sleep. If they party overnight then they are overnight guests. If they sleep all day but don't stay overnight they are not overnight guests. What about 2 am? If sunrise is after 2am then this is not overnight. | I would presume that this is legal (without researching the laws in Cali. or Texas). Their contract is an offer to enter into an agreement. You accept that offer by signing. Their pre-requisite for that offer is that you pay the nonrefundable application fee. In other words, they are refusing to make you an offer until you pay a set fee. Now the degree of negotiability, among other factors, would go into determining whether the contract is fully enforceable. I did a little bit of research. (Please note that this is not legal advice. If this applies to a current situation, seek the advice of an attorney licensed to practice in your jurisdiction.) There does not seem to be any indication that the landlord needs to provide a sample lease to you before s/he decides that you are an eligible applicant. The application fee is not a contract to rent the premises; it is an application to be considered a tenant. Pro-Business Perspective: Why would I (the landlord) waste my time going over an application with someone and show them a model unit if they are not even eligible to rent from me? I have better things to do. Pro-Consumer Perspective: Why waste my time and money if I refuse non-negotiable terms in a lease? The application fee is capped in California and must be used to cover screening costs or refunded if not used. The likelihood of success in a claim regarding this might be indicated by the California Dept. of Consumer Affairs: "If you don't like the landlord's policy on application screening fees, you may want to look for another rental unit. If you decide to pay the application screening fee, any agreement regarding a refund should be in writing." It is important to note that you can always try to negotiate with the landlord. Personally, every lease I have had I have negotiated to get more favorable terms. You, as a tenant, have every right to try to negotiate, and should use that right. | Landlord-tenant laws are state-specific, and given the number of states it's impractical to scan all of the laws, but based on a reading of a handful of such laws I doubt that there is any law requiring landlords to pay the oil for a rented house. (The matter would be different if there was a multi-unit building with no individual control over temperature, thus pooled fuel usage). It's not clear to me what you assumed the agreement means, where it says "N/A". Perhaps you believed at the time that the place had a different heating system, and you relied on that assumption. In that case, you might be able to go to court and have the contract voided, and you could pick another place to live. If the "options" are specified so that some things are assigned to tenant, some to landlord, and some are N/A, that would especially lead to the reasonable belief that there was no oil heat in the house. But if the only indications were "landlord" versus "n/a", then you could interpret "n/a" as meaning "not the responsibility of the landlord". Analogously, if the agreement only lists "tenant" and "n/a" then a reasonable interpretation would be that this means "the tenant pays" versus "the tenant does not pay". This reasoning would also have to survive the alternative interpretation that the tenant pays for everything, except that n/a means "there isn't one of these". In other words, the meaning of the term might be determinable from the overall context of what's in the agreement. Since the house does not come with a full tank (as with car rentals), the question of what to do with the residual oil at the end of the lease should also be specified. Unlike gas or electric, you're not just paying for actual consumption, you're paying for potential consumption, and you would have an interest in the remaining half-tank at the end of the lease. You could just walk away from that investment (pumping it out and taking it with you could be illegal, since the stuff is kind of a contaminant), or you could have an agreement where the landlord buys the oil back from you, but that should be specified in the agreement (and I assume it isn't). This kind of consideration could support a claim that you reasonably believed that there was no oil system (if there were, there would be some term relating to your interest in the residual oil), or even a belief that the landlord would pay the cost of the oil (since he ultimately gets the remaining oil at the end of the lease). You attorney (hint) should advise you how to approach this. | Assuming you have a six-month Assured Shorthold Tenancy, you don't have to give any notice at all. As long as you are not in occupation after the end of the tenancy (which means moving out before it ends), that's it. For example, this page from Shelter says: The general rule is that the tenant can leave on the last day of a fixed-term tenancy without giving notice, and this will end the tenancy.[2] If the tenant remains even a day longer than the last day of a fixed-term tenancy, a statutory periodic assured shorthold tenancy will arise, which the tenant can end by serving a valid notice to quit. [2] Right d. Flower v. Darby (1786) 1 T.R. 159; Cobb v Stokes (1807) 8 East 358. This is extremely bad news for landlords, who don't (necessarily) get any notice that they have a void. In general, I would say you ought to give a month's notice (full disclosure, I am a landlord), on the other hand, if they haven't fulfilled their responsibilities perhaps not (but you may have an exaggerated idea of their responsibilities). If you do this, don't expect to get a good reference from your landlord! (Which is going to make it harder to find somewhere else to live). You should also anticipate difficulties in recovering your deposit (you are legally entitled to it back, but that doesn't mean your landlord can't be difficult about it - possibly even requiring you to sue for it). I have just noticed the second part of your question. If you do nothing (in other words, stay in residence), at the end of your Assured Shorthold Tenancy you will switch to a periodic tenancy. The landlord can't force you to switch to another six-month contract, but on the other hand, if you don't, they are perfectly entitled to give you two months notice. If they are smart, they will give you this notice now, so that you can only stay for two months on the periodic tenancy. Note that the letting agent has an incentive to get you and the landlord to sign another contract (they can charge the landlord a fee for it), so they may not be being entirely honest about whether a periodic tenancy is an option. (On the other hand, a poor landlord may be more interested in locking a tenant in for six months.) | If you buy a house, you can generally rent out a room in the house, unless in that jurisdiction there is some law against renting rooms in houses (that's actually a condition in my neighborhood, one widely ignored). If it's legal to rent (lease) a room, it is generally legal to sub-lease that room – as long as that's allowed under the original lease contract. I have never heard of a jurisdiction that has a blanket prohibition against subleases. So as far as the actual question goes, the answer is, "yes". The links are about something a different, namely rent control law in San Francisco, and the question of whether a tenant can be evicted from a rent-controlled unit because the owner wants to move in to the unit. Owner move-in eviction requires a specific procedure for giving notice, and the links are about these requirements. Conceivably, though, the question could be whether a person can buy a house that is being rented out, do a proper owner move-in eviction, and then lease a spare room. The SF rent laws require a good faith intent to move in and use as the primary residence for 3 years, and nothing prohibit subsequently leasing a room. Those laws pertain to evictions, not re-rentals. (It should be noted that once eviction under section 37.9(a)(8) has been carried out on a unit in a building, no other unit in the building can ever be so recovered. That could mean that the room in the house could never again be recovered, if it is considered to be a separate "unit" from the "unit" that is the whole house). | Can landlord backbill 4.5 years worth of utilities that were never billed to us bimonthly as directed in the lease? Yes, since the bimonthly billing issue appears to be within the LA statute of limitations for claims of breach of contract: 10 years (see here). But you might want to check the actual legislative language of the statute referred therein and the prior or consecutive ones --all pertaining to statutes of limitations-- so as to ascertain the accuracy of information in the first link (navigating through the bunch of LA two- or three-line statutes for this and that gets annoying). They are desperate to get me to move out since it is a rent-controlled unit and I feel like they have done this to cause issues and force me to default on rent. Is this a legal practice? I am not knowledgeable of state legislation particular to rent-controlled units, but I highly doubt it is lawful for them to proceed that way. Other details you describe reflect that the company has been --or is being-- malicious or grossly negligent. If so, strictly speaking, the company's conduct (1) ought to weaken its position or merits in trying to force you out, and (2) tends to contravene the contract law covenant of good faith and fair dealing (see below). If your lease mentions any statutes regarding rent-controlled units, you may want to search for case law at leagle.com to see how the statutes are applied. Without knowing the terms of your lease, I think your priority should at all times be the rent itself so as to avoid eviction. Does the "billing every two months" in the lease have any hold on this issue if they breached their own lease? Maybe not. The repeated, yet sole, failure to send you the bimonthly billings falls short of landlord's breach of contract. For your argument on breach of contract to prevail, you would have to prove that the landlord knowingly/deliberately let the water bills pile up prior to demanding you to pay everything at once. That would prove that the landlord is not meeting the covenant of good faith and fair dealing that is prerequisite in contract law. | The overwhelming majority flats in England are leasehold, not freehold; older buildings typically have 80 or 100-year leases, newer buildings usually have 999-year leases. Therefore you are dealing with the freeholder as a landlord for the matters that a HOA would deal with in the US. Depending on your landlord you may want to reconsider your statement that HOAs "are pure hell". It is possible for the leaseholders to collectively buy the freehold although it is time-consuming and expensive and happens very rarely. If they do they set up a body similar to a HOA. |
Do section titles in a contract have to end in a period? While reading through contracts, every time I think to check, all the section titles end with a period. Example: 1 Some Random Section. (Section's text goes here) Is this just the standard formatting style, or is there any legal requirement for it? Is there a guide online that lists the standard contract formatting style conventions? | No, section titles do not have to end in a period. But a common convention in the U.S. is that when section titles are used, they appear in bold and are followed by an unbolded period. For example: Development Credit. The Client shall acknowledge the Developer as the Website developer on the Website page entitled ... The convention promotes clarity and helps courts that later have to interpret the document to better understand the parties' intent. For a written contract, an alternative would be to place the title on its own line with the text below. Some contracts omit section titles entirely. Others add them but with an additional section explaining that the titles are not to be used to interpret section text groupings. Online resources like Law Insider and Onecle have large databases of sample contracts that should help with both formatting and content. If you'd like to learn contract drafting and revising somewhat more formally, then a good text reference is Tina L. Stark, Drafting Contracts: How and Why Lawyers Do What They Do (Wolters Kluwer 2d ed 2014). (The above snippet is from Stark.) united-states | Contracts are a relationship between two or more people Just as it is meaningless to speak of marrying yourself, it is equally meaningless to speak of a contract with yourself. Even if you were to draft such a thing, you would not have standing to sue because you can’t sue yourself. Your example probably isn’t a “one person contract” It’s a contract between the car owner (person 1) and the car yard (person 2) - probably a corporation. The fact that person 1 is representing both parties to the contract doesn’t make it a “one person contract”. There are potential conflicts of interest with this but they are not necessarily ones that can’t be overcome. However, if the car owner runs a business as a car dealer as a sole trader, then, no, they cannot make this kind of contract. | A typo in a contract does not ever void the contract. If the typo changes the meaning of the contract from what was actually intended, then it is up to a judge to interpret the contract and whether it is reasonable that a person would assume its intended meaning. In your example, it is obvious that the word "least" was meant to be there and not "lease" - as the alternate word makes no sense in context - so a judge would not void the contract or release you from your 30 day obligation (which is probably even granted to the landlord by local laws regardless of whether it was stated in the contract). Even misspellings of people's names or addresses on a lease do not void a contract if you have already paid or taken up residence. If any of these situations were brought to court, the judge would just amend the contract to a corrected version that would then serve as the contract between the two parties, replacing the version with the typo. This is known as contract reformation. | If the contract commenced on 1st October 2022 the dates 30 April 2022 and 1 July 2022 are plainly a mistake (2022 for 2023). If so, you can give notice before 30th April 2023 to terminate at the end of June. Even if you want to hold them to those dates, the current "full calendar quarter" (which has been tacitly renewing) will end on 31st March, and 2nd February was too late to give the required 2 months notice. Either way, the contract cannot end until 30th June 2023, the end of the next full calender quarter. | It would basically be illegal, regardless of what a contract says: contracts are subordinate to the law. So the question comes down to whether the law unequivocally requires OT for shifts longer that 8 hours. These sorts of governmental fact sheets are not absolute statements of the law, they are guidelines about what is most commonly applicable, and to determine if there are any exceptions, one must consult the actual law. The fact sheet says "After working eight hours in a day an employee must be paid time-and-a-half for the next four hours worked", which is somewhat different from "in a shift". The (summarized restatement of the) law says that an "averaging agreement" is legal (if in writing), so if that allows working more than 8 hours in a shift, that could be consistent with (does not override) the law. To really know, you have to read the actual law. The section on maximum hours and overtime says 35 (1) An employer must pay an employee overtime wages in accordance with section 40 if the employer requires, or directly or indirectly allows, the employee to work more than 8 hours a day or 40 hours a week. (2) Subsection (1) does not apply for the purposes of an employee who is working under an averaging agreement under section 37. So 3 shifts of 12 1/3 hours would be legal, and perhaps typical in a hospital. The "average hours" part of the law says an employer and employee may agree to average the employee's hours of work over a period of 1, 2, 3 or 4 weeks for the purpose of determining the employee's entitlement, if any, to overtime wages under subsections (4) and (6) of this section and wages payable under subsection (8) or (9) (b). as long as there is a clear advance agreement (as in a contract). This still limits hours worked without overtime to 40 hours/week (on average), and then there is still an upper limit of 12 hours: An employer under this section who requires, or directly or indirectly allows, an employee to work more than 12 hours a day, at any time during the period specified in the agreement, must pay the employee double the employee's regular wage for the time over 12 hours. Since the law is stated in terms of "day", we better see what a "day" is: "day" means (a) a 24 hour period ending at midnight, or (b) in relation to an employee's shift that continues over midnight, the 24 hour period beginning at the start of the employee's shift; so you can't force an employee to work 12 hours without overtime (without an averaging agreement), simply by splitting a 12 hour shift across midnight. It is thus possible for a contract to do things that superficially appear to be contrary to the "most common situation" factsheet representation, but the law itself is not overridden by such a contract. | So you entered a contract that was a bad deal. The law says: tough People are legally allowed to make bad deals. The law will hold you to the bad deal you made. If it only worked for good deals, no one would ever use the law because you don’t want to break a good deal. Providing it has all the required elements of a contract, it will be enforceable. Put up with him or pay him out. | Generally, what you say you will do in a contract is what you must do - there is no "the dog ate my homework" excuse. For your examples: Employment contracts have so much government regulation that the common law contract is lost in the mists of time. It is unlikely that a court would interpret an employment contract as requiring exact timekeeping; it is also unlikely that the person would have worked exactly 38 hours on every week except the one where they worked 37.5. However, if it were proved that the employee owed 0.5 hours to the employer they could be required to provide it or refund the pay they had received, barring a law that changed this. The dog must be walked. Alice must find a substitute walker if she is unable to provide it. Falling sick is something foreseeable that Alice should have provided for either in the contract ("if I am sick I won't walk the dog") or by arranging for someone else to do it. For purely personal services, falling sick may frustrate the contract, however, dog-walking is probably not personal enough. There is a doctrine which allows termination by frustration where neither party is at fault, however, it is not clear that this would apply. The building burning down is foreseeable and could (should?) have been addressed in the contract. If the destruction of the building was without fault on the owner then the contract is frustrated. If there was some fault on the owner (smoking in bed, inoperative fire alarm etc.) and the cleaner stands willing, ready and able (that is able except for the absence of a building) to perform their obligations, the owner would probably be obliged to pay, at the least for unrecoverable costs (e.g. wages) and loss of profits - if they pay for the cleaning products the cleaner would be obliged to deliver them up. One of the main reasons for the length of contracts for non-trivial transactions is they deal with these contingencies. | Adults are bound to contracts with minors The technical term is that a contract with a minor is that it is voidable by the minor unless it is subject to the exemptions - a contract for necessities or a contract of benefit to the minor (e.g. a reasonable mobile phone contract). Until the minor chooses to void it, it is binding on everyone involved. They can do this anytime before they reach majority or within a reasonable time after that providing the contract is not complete. That means, for one and done transactions, the contract cannot effectively be voided because the contract is complete - think of a child buying an ice cream, riding a bus or going to the movies. If it is voided, the minor is obliged to return whatever consideration they received and that is still in their possession. So, for the mobile phone contract, if it included a handset, they must return that providing they still have it. |
Legal status of an ongoing situation pending an appeal Apologies for the title. I could not think of a concise and accurate way to phrase it. I will phrase this question in terms of charitable trusts, but my question is really about the general principle. I am assuming that the particular statutes which apply to the given situation are silent on this issue. Let's say we have a charitable trust. It is determined (by a regulator or a court of first instance) that the trust is invalid. Let's call this point A in time. At point A, it is as if the trust has never existed (which means we have a resulting trust back to the settlor). The trustees appeal. If they lose, then nothing changes - the trust never existed. If they win, then the trust has always existed. Let's call this point B in time. My question is, how do the trustees figure out what their legal duties are between point A and B? What happens if they do something during this time which would be considered a breach of trust if the charitable trust is reinstated? What if they are legally compelled to do so e.g. the beneficiary of the resulting trust asks for his money back. If there is no charitable trust, then the trustees cannot refuse the request. On the other hand, if the charitable trust is reinstated then they have spent charitable funds on a non-charitable purpose. What is the general principle? How should you behave when you are in situation X, but the outcome of an appeal could mean that you are retrospectively in situation Y, and you are faced with a conflicting set of rules for a given action during the interim? Ideally I would like a UK specific answer, but would also welcome more general answers based on common law systems. | Ohwilleke's answer (i.e. 'there isn't a simple answer') covers the general principles clearly. But for your specific situation (England and Wales, appeal to the High Court Chancery Division or Court of Appeal), the answer is "Do nothing irrevocable if possible; if necessary, apply for interim directions to the Court". The Chancery Masters are used to this sort of application, and though somebody will presumably be diappointed by the decision, the trustees have no liability. | The explanation in the decision (fn 1) is that That announcement does not moot this case. We have said that such voluntary cessation of a challenged practice does not moot a case unless “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” [citations] The Department has not carried the “heavy burden” of making “absolutely clear” that it could not revert to its policy of excluding religious organizations... “there is no clearly effective barrier that would prevent the [Department] from reinstating [its] policy in the future” | Transfer of title must eventually occur, otherwise the property was never willed to another because the willing of the property is perpetually incomplete. One can place conditions on the transfer of title, but those conditions cannot last forever. They can last quite long, but there is a rule against perpetuities, especially created due to clauses constraining the transfer of of title in wills. This rule applies to a person who is transferring title, with a conditional clause that bars the full use of the property. If such a clause is limited, then it does not exist in perpetuity. The rule specifically addressed the will's call to reassign title if the transfer's clauses were violated. The maximum limitation historically was the lifetime of some person alive when the will was executed, plus 21 years, to permit an unborn grandchild to inherit. The reason this rule came about was due to the will of Henry Frederick Howard, the Earl of Arundel and Surrey. It effectively left the dead Earl managing his estates after his death, shifting properties that were bequeathed, based on the possibility of a "more suitable" heir being born after the Earl's death. This will eventually created the most complicated bit of common law that exists to date. In my totally amatuer attempt to summarize it; it is a combination of at least two ideas: a "dead hand" (deceased person) cannot guide the activities of the living forever transfer of property (title) must eventually be fully transferred Exceptions to the rule exist for conditional transfer of title back to the person who originally owned the property, but these exceptions cannot apply when the transfer is to a third party. This clause in Evan's will, "If the state violates this clause, the property is to return to the heirs of the estate of Evan Carroll." would only be enforceable for a limited amount of time. First, the Estate of a dead Evan Carroll is not a lasting entity, eventually his estate would be closed. Finally, the transfer to the "heirs" of Evan Carroll would be a transfer to a third party, subject to the rule. Some states interpret their protections against the rule in different ways; but, nearly all states that have revoked the rule have done so by making a new rule (often with easier to manage time limits). A handful claim to have revoked the rule; but, they use other legal approaches to prevent this problem from occurring. Texas has extended the rule to 300 years while New South Wales, puts the limit at 80 years. Texas's extension seemed to be primarily to permit trust funds to operate legally long after the person establishing it had died. Consider what happens if such a rule doesn't exist. The title of the property could never be fully transferred, because the clause could never be proven to not have been violated. This would dramatically devalue the property, and clog the courts with suits claiming property held by one family for 100 years isn't theirs because of some evidence just uncovered about what happened 60 years ago. It also would massively complicate the selling of the property, because a clean title could never be proven. Note that this rule would have no bearing on a covenants not tied to the property's transfer of title. This rule even made it into a recent Disney case, which is explained far better than I can by the Legal Eagle, Devin James Stone | Websites are not ships that can choose a flag of convenience to govern which country's laws govern them. Generally speaking an analysis of which jurisdiction's law applies (which is strictly speaking a "choice of law" question as much as it is a jurisdiction question) isn't undertaken on a website by website, or business by business basis. Instead, jurisdiction and choice of law are evaluated on a claim by claim basis. The owners of a website may be subject to some claims in India, to some in Bhutan, and to others in the United States, depending upon the claim. Without knowing who is trying to sue for what, you can't know. Generally speaking, a business that operates in multiple jurisdictions, like a website, will be subject to the laws of all of the jurisdictions in which it does business in regard to claims with a connection to those jurisdictions. Of course, as a practical matter, only claims that can be enforced against the owners of the website are relevant, which usually means that only claims brought where the owners reside or own assets are relevant. If the website owners own property or have amounts payable to them in India, there is a very good chance that India can, as a practical matter, assert jurisdiction over them. And, it is likely, as a practical matter, that Saudi Arabia or China would not be able to assert jurisdiction over them in a meaningful way. The fact that businesses can be conducted through legal entities further complicates the analysis. But, at any rate, the place to begin is to realize that the question "Under which country's jurisdiction does a website fall?" is basically a category error. You need to ask "Under which country's jurisdiction does a website fall when it is sued or prosecuted for X kind of matter by someone who lives in Y?" So, really, this one question is actually dozens or hundreds of questions that each have to be analyzed individually. | Actions in common law tort exist for both scenarios. Potential torts are negligence, trespass to chattel, and/or conversion. Putting the largely apparent tort of negligence aside, since that is nearly always available when something and/or someone is damaged by another (requiring only the [negligent] act, causation and damages) I'll focus on the other tort potentially applicable to scenario 1. The minority rule concerning trespass to chattel can be established even when the interference is negligent, whereas the majority rule requires intent to deprive. Interestingly, when the Restatement 2d of Torts talks about minority rule vs. majority rule, it really means "least often applied" vs. "most often applied", rather than merely "in some (fewer or greater) defined jurisdiction(s)". With these type of uncommonly pled torts, you could find a huge jurisdiction like California having lower courts (especially small claims or district courts) applying both the minority rule in some courts and the majority rule in others. This, all within one judicial jurisdiction if that state's law court has not weighed in on their interpretation of preference. The Restatement 2d (Second) of Torts § 217 and §218 define liability in trespass to chattel as "intentionally (negligently - minority rule ): (a) dispossess(ing) the other of the chattel, or; (b) the chattel is impaired as to its condition, quality, or value, or; (c) the possessor is deprived of the use of the chattel for a substantial time, or; (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. Trespass to chattel can consist of mere "intermeddling with or the limited use of the possession" and no damage need occur to the property, as damage is per se; however in your scenario, actual liability would occur in the destruction of the possession. The 2nd scenario would lie in the more serious tort of conversion. The tort of conversion will always requires intent to deprive the owner of his property, and the majority view is that the deprivation is intended to be total or forever (whether by continued deprivation or by destruction). There are 3 elements required to establish conversion: plaintiff's ownership or right to possession of the property at the time of the alleged conversion; defendant's conversion by a wrongful act or disposition of plaintiff's property rights; damage(s). While anticipating the follow-up question to either scenario, being "what about the fact that you didn't take the ball, but rather it ended up on your land, and shouldn't that count for something"...the answer (to the unasked question :~) is no. The act of taking possession over property to satisfy the necessary prong in both torts may take any number of forms, but need not be wrongful to begin with. All that is required to establish possessory control over the chattel in a tortious manner is merely interfering with the plaintiff's right of possession, which is a wrongful deprivation of something the owner was entitled to possess (so in other words, even if you didn't go and take it, once you know it's there, it's not yours, and you seek to keep it, either temporarily, permanently – the act of wrongful possession has occurred. The way the property was acquired is not at issue. Conversion and Trespass in Chattel are often spoken of interchangeably despite the fact that they are different. The difference between a cause of action for conversion and one for trespass against chattel is measured only by the degree of interference with the plaintiff's rights in their chattel. While the distinction seems subtle in a vacuum, in the old English cases where these torts were typically decided, conversion was one small step from criminal activity, whereas today conversion may be the civil adjunct to a criminal suit. *for those not familiar: chattel is any possession that is not real estate. | I am wondering if the government can still implement it and force people to pay even if the decision is challenged in court. Laws are not automatically put on hold because they are challenged. For an action or a law to be halted by the Court before a decision is made, the applicant would have to seek an interlocutory injunction, which are granted only if, as established in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, (i) is there a serious issue to be tried, (ii) will the party seeking the injunction suffer irreparable harm if it is not granted, and (iii) does the balance of convenience favour the party seeking the injunction. The first issue is rarely a problem, especially for a controversial issue like this. I am thinking the government might be able to tax people and then refund people if the court doesn't uphold the decision instead of a court challenge being able to postpone the tax indefinitely. A quantifiable financial harm is rarely irreparable (in private law cases). However there is an important exception for Charter cases where a financial harm is assumed to be irreparable because damages are often not awarded in constitutional cases. Though in this case it might be considered reparable because the quantification of damage and the method of redress are straightforward. For the third question, the Court needs to weigh both sides' interests in the case where the injunction is granted. Even if the damage is deemed irreparable, the Court may (or may not) still find the public interest in health outweighs the financial interests of the unvaccinated. | The GDPR's right to erasure is not absolute. Simplifying things a bit, you only have this right if the legal basis for processing was consent, because consent can be revoked freely; or the legal basis for processing was legitimate interest and the controller does not have an overwhelming legitimate interest in keeping the data. Legitimate interest always requires that the controller's legitimate interest and the data subject's rights and interests are balanced. A request for erasure shifts this balance but does not decide it. In practice, a request for erasure may be denied if the controller has legal obligations to keep this data, for example financial records; or the continued processing of this data is necessary for performance of a contract; or the controller has an overriding legitimate interest in continued process of the data. Note that contracts may have effects that survive termination of the contract. Note also that a contract might not involve the data subject as a party to the contract, the classic example being a postal delivery contract that necessarily requires processing of the recipient's personal data. In your specific example it seems that the legal basis was legitimate interest and that the data controller has an overwhelming legitimate interest to hold on to parts of your data for the purpose of fraud prevention. If you feel like the continued processing of the data is illegal, for example because the legitimate interest balancing was done incorrectly, or because the legal basis was consent, then you have the following remedies: You can lodge a complaint with the responsible supervisory authority. You can sue the controller before a responsible court for compliance, and for the (actual) damages that you suffered as a result from illegal processing. I'll point out that neither of these approaches is likely to work for you, because abuse/fraud prevention appears like a pretty standard case of overwhelming legitimate interest. | Not returning a payment made in error may amount to theft. s.5(4) of the Theft Act 1968 covers this scenario: Where a person gets property by another’s mistake, and is under an obligation to make restoration (in whole or in part) of the property or its proceeds or of the value thereof, then to the extent of that obligation the property or proceeds shall be regarded (as against him) as belonging to the person entitled to restoration, and an intention not to make restoration shall be regarded accordingly as an intention to deprive that person of the property or proceeds. And the leading case law is A-G Ref (No 1 of 1983) [1985] QB 182 where, in similar circumstances: The defendant, a police woman, received an overpayment in her wages by mistake. She had noticed that she had received more than she was entitled to but did not say anything to her employer. She did not withdraw any of the money from her bank account. The trial judge directed the jury to acquit. The Attorney General referred a question to the Court of Appeal. Held [on appeal]: It was possible for a theft conviction to arise where the defendant had not withdrawn the money. There was a legal obligation to return the money received by mistake. |
In Australia can you take Personal leave to look after a sick child or partner? Under Australian employment law are you allowed to take personal leave to look after a sick child or partner? Is personal leave the correct category or does it depend on employment terms? | According to the Australian government itself, not only children and partners, and not only for sickness, but all immediate family of the employee (and of their partner if applicable) and for "unexpected emergencies" as well. An employee may take paid personal/carer’s leave: if they are unfit for work because of their own personal illness or injury (including pregnancy-related illness), or to provide care or support to a member of their immediate family or household, because of a personal illness, injury or unexpected emergency affecting the member. A member of the employee’s immediate family means a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of an employee; or a child, parent, grandparent, grandchild or sibling of the employee’s spouse or de facto partner. | could they make a realistic claim that I had voluntarily terminated my contract before the year was over? The employer's act would forfeit its entitlement to reimbursement of bonus. The clause clearly indicates that the triggering event is termination, not the anticipatory notification thereof. Furthermore, the employer's act would be a breach of the [contract law] covenant of good faith and fair dealing. That would be in stark contrast with your compliance with, and/or kindness in, giving a two-week notice. The employer's termination of your employment seems improper in equity insofar as it was aware of your notice and thus took advantage thereof. | As a preface, while the best course of action isn't always clear and the reality of implementing some solution is often rocky, the bipolar diagnosis situation you describe is probably the single most common situation in which legal arrangements must be made for an adult child, and is almost as common as the need for children to make legal arrangements for the care of their declining parents. You aren't the only one going through situations like these. Probably 0.5%-2% of people in any given area experience bipolar, usually starting in adolescence or young adulthood, and difficulties managing it of the kind that you describe are the rule and not the exception. Also, just ignoring the problems you describe is a very bad idea. Premature death either from suicide or bad judgment related to the bipolar diagnosis is all too common in these situations. It is serious business, not something that should be thought of as bad character, or futile to do anything about, or blameworthy. It just is, and if someone doesn't do something when the plan gets off course, serious consequences often follow. There are really several intertwined issues present here. Realistically, given the nature of the concerns expressed, a limited guardianship may be necessary to accomplish the goals expressed. What Are Medical Powers Of Attorney? A healthcare or medical power of attorney gives the person who holds it (who is called an "agent" or "proxy") the authority to make medical decisions for someone called the principal (i.e. John Smith) when the principal lacks the capacity to give informed consent at that very moment to do so. This is because a power of attorney is an inherently revocable document expressing the wishes of the person writing it. You generally can't bind yourself in the future without court approval or a contractual relationship with a third party which a power of attorney is not. It isn't uncommon for medical personnel to decide on the spot when to and not to listen to someone with a medical power of attorney based upon how mentally competent the patient seems at the time on a decision-by-decision basis. For example, they might defer to the medical power of attorney agent when the patient is unconscious or heavily drugged, and listen to the patient when the patient is conscious, not drugged, and not acting erratically. Parents, incidentally, do not automatically have this authority, nor do spouses. A medical POA is a document that allows the agent to say "yes" when the patient (i.e. John Smith) cannot. Another name for a document that is very similar and sometimes used is a "health care proxy." It would typically cost a few hundred dollars to $1,000 to have a medical power of attorney drawn up after discussing the situation and the principal's needs in a meeting with a lawyer and might take an initial meeting and then a second one at which the document is signed after it is prepared following the initial meeting. Other lawyers might manage this in a single meeting and draft it while you wait. If all you need is a power of attorney, don't be penny wise and pound foolish by doing it yourself, unless the form is provided to you by the health care provider you will spend most of your time dealing with and they prefer their own form. Otherwise, the likelihood that you will have to pay more to a lawyer later cleaning up your own mistakes probably exceeds any money that you will save. Other Kinds Of Authorizations Many medical providers will allow someone to act on behalf of a patient in matters other than matters that call for the kind of medical decision that would normally require the informed consent of the patient, even when the patient is not manifestly incapable of making medical decisions at that very moment. This could simply be a note in the file that the patient has given that person authority to do so, it could be a written authorization to access HIPAA protected personal health information of the patient, and it could be a variety of other things (e.g., authority to make financial arrangements). Some of this is often incorporated in the same document as a medical POA. Picking Up Controlled Substances A Medical POA may, or may not, necessarily be sufficient to authorize someone to pick up a controlled substance on behalf of a patient if the patient is physically able to do so, without the presence of the patient. I don't know what the true rule of law under the controlled substances acts and pharmacy regulation is, but I do know that practice in real life varies quite a bit. The best practical solution to the issue of picking up controlled substances would be to ask the usual pharmacist what they require and to comply. (A legal guardian would generally have the power to pick up controlled substances for a ward.) Guardianships and Limited Guardianships What Is a Guardianship? A guardian of the person is someone appointed by a court who has the authority to make medical decisions and other personal life decisions for their ward (i.e. John Smith), even contrary to their apparent stated wishes. A guardian has the authority to say "yes" and also to say "no" to the expressed wishes of the ward, overruling the ward. A guardianship of an adult can be general, or can be limited on a customized basis. A guardian must be appointed by a court with jurisdiction over these cases, usually in the county where the ward resides. But, a guardianship can be requested by the ward as opposed to contested. Realistically, a court would be unlikely to grant a full guardianship or a contested guardianship in these circumstances, but might grant a limited guardianship with the consent of the ward in these circumstances. The parents and possibly any siblings, would have a right to notice of the proceedings and to object or to seek to be appointed instead. What Process Is Involved In Having a Guardian Appointed? This would realistically be a proceeding that should ideally involve a specialist lawyer (with experience in mental health or elder law and guardianships) and at least one medical professional's statement (probably a treating psychiatrist or psychologist). There would also probably be a court investigator or guardian ad litem appointed at the ward's expense, to confirm that the facts represented in the petition to have a guardian appointed really reflect the ward's intent. Usually, a proposed guardian selected by the adult ward during a lucid interval would have priority for appointment. The medical professional and lawyer should be able to provide good suggestions regarding what the scope of the limited guardianship needs to be, although don't ignore or fail to give full credit to your own layperson's practical understanding of the situation either. The guardian would have to provide information to the court in connection with the petition showing eligibility to serve (e.g. criminal record check, credit check, CV, nomination by ward). Often the guardian would have to demonstrate good intentions towards the ward in some way, especially if the guardian is a third party and not someone who serves as a guardian as a livelihood. Some courts would require the guardian to have insurance for liability in connection with the task or a surety bond up to some dollar amount. The final decision would usually be made in an in-person hearing at which the ward, the proposed guardian, the proposed guardian's lawyer, the medical professional, the guardian ad litem or investigator, the judge, a court clerk, a court reporter, and any family members who chose to appear (with their lawyers, if any), were present. If the guardianship was granted, perhaps with modifications requested by the judge to the terms of the guardianship, then the Court would issue what are called "Letters" that formally appoint the guardian to the post. Once appointed, the guardian would have to file periodic status reports with the court and would also be subject to the court's jurisdiction in the event of any future dispute regarding the guardianship, or any allegations of misconduct by the guardian, or any circumstance that requires court approval such as a change in the terms of the guardianship or in the person serving as guardian. The procedural details I am describing are approximate and aren't necessarily up-to-the minute correct, and might vary somewhat even from court to court within California under local rules and customs of practice; but they give you a gist of what the process would be like if it is working properly and with best practices. Typically, this might cost $3,000 to $10,000 all in for an uncontested proceeding, and many times that much in the event of a contested attempt to have a guardian appointed. Health Insurance Eligibility I'll defer to someone else's answer regarding health insurance eligibility, as I don't have time to look into that at the moment. My instinct is that this wouldn't be a problem in any case except a guardianship and probably wouldn't be a problem even in a case with a third party guardian, but I can't confirm that without doing research. | Your interpretation seems to be correct. A furloughed employee is defined by Acas to be one who is "temporarily sent home because there's no work". This could in principle be through unpaid leave. The Coronavirus Job Retention Scheme is a government scheme to compensate employers for the wage bills of their staff during the furlough, so that the furloughed staff can continue to receive some income. An employee would have no direct dealings with the scheme and would continue to be paid via their employer. Your company seems to be offering to match the terms offered to employees under the Coronavirus Job Retention Scheme of 80% of salary, presumably out of their own funds. A kind gesture, it seems! | You probably would not be "obligated" to do anything. However your employer also would not be "obligated" to continue employment. If you agreed to something verbally, that is a contract. Verbal contracts can be difficult to enforce, but in this case the employer does not need to enforce it but rather take the easier solution of terminating your employment. | The real question isn't whether there is a law, but whether you want to keep your job. If you want to do something that you believe will affect your company negatively, and you ask whether it's legal or not, the question alone should show you it's a bad idea. And another question is whether you can be sued, and what it will cost you even if you can win a case, and the answers to that are "yes" and "a lot". | Contracts can say all sorts of unenforceable things, you provided an example of one of them. A person cannot be compelled to stay and work somewhere they no longer wish to work. At the risk of getting my wrist slapped for straying too far into the land of opinion, a clause like this is likely intended to take advantage of naive teenagers who will provide free employment referrals because they think they have to. | In Texas, as in most of the US, the law is "Employment at Will". This means that an employer is free to fire people at any time, for any reason, or none, as long as it is not for one of the few reason forbidden by law, such as racial or age discrimination. Hourly employees are entitled to overtime pay in such cases, but "exempt" employees are not. Nor are they entitled to comp-time as a matter of law, that is at the option of the employer. (The question seems to imply that the employee in question was "exempt" but does not actually say so.) The only really effective recourse against that sort of "death march" is to quit and find a better job, or to threaten to do so while they still need you, unless the conditions return to acceptable ones. I have heard of people in such a situation who "get sick" every day at 5:30pm, because local law forbid requiring ill employees to work. But that is pretty much inviting an arduous and possibly expensive administrative and/or legal battle, and will depend on the specifics of the state/local law. In any case, it is too late for the person in question to try that. On the facts as stated, there might be a valid claim of age discrimination. But additional facts would be needed to establish this, and it would be in my view unwise to try it without consulting a good employment lawyer. Such a lawyer could advise exactly what must be proved and how, and what the probable chances of any recovery would be. |
I am an American about to marry a Russian girl in Russia. Do I need a pre-nup? My fiance is not a "Russian bride"; she's a real girl I've been dating for a year, we love each other, and want to get married. If we marry in Russia, do I need a pre-nup? If we later on get a foreign spouse visa to enter America, will that mean I should have an American pre-nup too? Or do I just have to have an American and Russian (translated) pre-nup in both countries no matter what? Thanks! | Choice of Law The place where you get married is irrelevant to the question of whether or not you need a pre-nuptial agreement. What matters is where you intend to live once you get married. A pre-nuptial agreement exists to change the default rules of law upon death and divorce. These rules differ from state to state, so the default rules you might modify depend upon where you intend to live after you get married, and so does the extent to which you need to modify those rules. Generally, a divorce will be governed by the law of the place where the couple resides when the divorce is commenced, and generally inheritance is governed by the laws of the place where the decedent (i.e. the dead person) was domiciled (which means something close to, but not the same as where the decedent resided) at death. Why Get A Pre-Nuptial Agreement? If you and your bride are happy with the default rules of law regarding divorce and inheritance in the place that you intend to live, there is no need for a pre-nuptial agreement. If the two of you are not content with the default rules of law regarding divorce and inheritance in the place that you intend to live, then a pre-nuptial agreement can change some, but not all, of those rules. Generally, a pre-nuptial agreement can change rules regarding property division, alimony and attorneys' fees, but not matters related to children or related to the grounds upon which you can get divorced or related to whether fault can be considered in a property division or alimony determination. What the pre-nuptial agreement would say would depend upon your objectives for entering into it. To answer your question it is necessary to know "what harm are you afraid of that a pre-nuptial agreement could prevent?" This has more to do with your expectations and values than it does with the law. Some reasons that people enter into pre-nuptial agreements include: preventing a spouse from inheriting or receiving in a divorce wealth that you inherited or might inherit in the future, because the donors might decide not to leave you inheritances otherwise; preserving wealth acquired by the spouse's respectively during life for one's adult children in a late in life marriage (e.g. during retirement) that is unlikely to produce more children. The Formalities Any pre-nuptial agreement should be drafted with both spouses represented by lawyers, and any competent lawyer should know the details of executing the document that are necessary to make it valid. If the agreement is drafted in English, which would make sense if she was moving to the U.S. to join you, she would need to have an interpreter in addition to a lawyer to help her evaluate and negotiate it, unless she was already fully fluent in English enough to understand advanced legal concepts (which would be very uncommon unless, for example, she went to school for many years in the U.S.). Immigration Considerations In the immigration process, U.S. immigration officials are skeptical that international marriages are legitimate and have the power to determine that an international marriage was a sham. One factor among many that immigration officials use to determine that a marriage was a sham entered into for immigration purposes is the existence of a pre-nuptial agreement that favors the citizen spouse. The more strongly the agreement favors the citizen spouse relative to the default rules of law, the more likely it is that immigration officials will determine that the marriage is a sham. It is not necessarily a factor that will cause the marriage to be found to be a sham, in and of itself, but it is an important factor that would be considered. If you enter into a pre-nuptial agreement, you are making it harder for your bride to become a U.S. citizen, and the more it favors you, the harder it will be for her to become a U.S. citizen. | At the time of annexation of country X someone would have to decide the status of the countries citizens: If all citizens of X are now citizens of the USA, and whether they are legally citizens from the date of annexation or since they were citizens of X, and if they are considered residents in the USA since the day they became residents of X, and if they are retrospectively "born in the USA" if they were born in X. And other things, like whether non-citizen legal residents of X are now non-citizen legal residents of the USA. That has to be decided for many reasons, and the answer to your question follows naturally from this. Maybe you could check on a history site if anyone knows how this worked with Hawaii. | Generally, in non-emergency situations, the state with jurisdiction over parenting issues related to children including relinquishment and adoption is vested in the courts of the "home state" of the child. A child's "home state" is defined by statute by a coordinated definitions set forth in parallel laws at the state (the Uniform Child Custody Jurisdiction And Enforcement Act in 49 states) and federal (the Parental Kidnapping Prevent Act) level. This definition of "home state" provides a fairly precise definition of something that approximately matches your intuition regarding the state where the child resides in most cases. There is also an international treaty with a similar home state definition. The state where the child was born ceases to be relevant at the point at which that state ceases to be the child's "home state". But, once a state's courts take jurisdiction over parenting issues for a child, the barrier to divest that state of jurisdiction is higher than it would be if there was no prior litigation. So, the state establishing the child support decree would often be the "home state" in the fact pattern set forth in this question. I will refrain from discussing the substantive law of voluntary relinquishment following an acknowledgment of paternity and payment of child support at length in this post as it is beyond the scope of what was asked. Suffice it to say that this is generally disfavored and is sometimes impossible. Also, the actions that could lead to involuntary termination of parental rights (even for mere non-support) also often have parallel felony criminal sanctions associated with them. | No. These companies seem to be saying that they are entitled to sell music under some sort of mandatory licensing agreement authorized by the law of the Ukraine, or by a licensing agreement specific to the Ukraine. Even if this were true, it would only give them the right to distribute the files in the Ukraine. If an American, sitting in the U.S., makes a digital copy of a file on a Ukrainian server by copying it to his or her U.S. hard drive, they have to have a license to do so issued either by the U.S. copyright holder or authorized by U.S. law. A license to distribute in the Ukraine doesn't give the U.S. end user that license. A Ukrainian statute doesn't give the U.S. end user that license. If the end user doesn't have that license, he or she is violating the copyright holder's rights and may be civilly or criminally liable. There is no scienter requirement for copyright infringement. In fact, it's not at all clear that any Ukrainian site is operating even under this dubious legal cover. This report on Ukrainian licensing agencies by an industry group claims that many Ukrainian licensing authorities are actually scams that have no rights to distribute music under any license--one of the "rogue licensing agencies" discussed is Avtor, referenced in your first example. There is some legal confusion over what group does have permission to license music and collect royalties in the Ukraine, but it's clear that Avtor doesn't, and it certainly doesn't have permission to distribute them in the U.S. If a guy came up to you on the street and told you he had written permission from Disney to videotape their latest movies with a camcorder and sell them to you for a dollar, are you violating the law if you buy it? The answer is yes, and it's the same for these Ukrainian sites. | Short answer: You find a country who is willing to recognize you as stateless, and issue you travel papers. At that point you can enter the U.S. by applying for a visa. The USA really does not want to create stateless people. They are laboring diplomatically to eradicate statelessness. As such, the State Department will want to see that you are secure in another country's citizenship before they will repudiate your US citizenship. Otherwise, they are very reluctant. The State Department will insist you do the repudiation in a foreign country at a US embassy. If you want to become stateless with your feet in the United States, you'll likely have a legal fight on your hands. Regardless, it will cost you $2300 in filing fees (plus, all your back taxes) :) At that point, you become the problem of the foreign country. You aren't anyone to the USA, and you have to apply for a visa just like anyone else. When a stated person enters the US, immigration's pivotal concern is whether you'll leave the US consistent with the terms of your visa, i.e. return to your country of citizenship. Being stateless increases this risk, and being a USA expat increases that risk further, since you are so familiar and comfortable in the US. If you found yourself in the kind of piccadillo that would qualify a foreigner for refugee or asylum status, the US would consider it just the same as others, since those statuses include right of residency. Some countries manufacture stateless people, e.g. Syria will not grant citizenship to a non-Muslim born there. | The expression "Russian person" appears in Article 11 of the original, which says No claims in connection with any contract or transaction the performance of which has been affected, directly or indirectly, in whole or in part, by the measures imposed under this Regulation, including claims for indemnity or any other claim of this type, such as a claim for compensation or a claim under a guarantee, notably a claim for extension or payment of a bond, guarantee or indemnity, particularly a financial guarantee or financial indemnity, of whatever form, shall be satisfied, if they are made by: (a) entities referred to in points (b) or (c) of Article 5, or listed in Annex III; (b) any other Russian person, entity or body; (c) any person, entity or body acting through or on behalf of one of the persons, entities or bodies referred to in points (a) or (b) of this paragraph The "Whereas" clause first introduces the word "person" saying Those measures comprise the freezing of funds and economic resources of certain natural and legal persons, entities and bodies and restrictions on certain investments, as a response to the illegal annexation of Crimea and Sevastopol Article 2 then gives various prohibitions, which are broader that the March prohibitions against certain transactions "to any natural or legal person, entity or body in Russia or for use in Russia". Since the regulation applies to things that are not human and cannot be citizens, it does not mean "citizen". It does include "a human", as well as artificial persons such as corporations, or government bodies. A Russian citizen who lives and works entirely in e.g. Germany is not in the prohibited set if they are not shipping prohibited goods to Russia. The Syrian Commander-in-Chief of the PLA (who is not a resident of Russia) is, however, prohibited from obtaining "dual use goods" to be taken to and used in Russia. Article 11 is different in wording from other articles stating various prohibitions, which repeat that long expression with "in Russia or for use in Russia". Art. 11 says that under certain circumstances, contract claims shall not be satisfied if the claims are made by (a) entities referred to in points (b) or (c) of Article 5, or listed in Annex III; (b) any other Russian person, entity or body; Apart from the explicit list in Annex III, (b-c) or Art. 5 is (b) a legal person, entity or body established outside the Union whose proprietary rights are owned for more than 50 %by an entity listed in Annex III; or (c) a legal person, entity or body acting on behalf or at the direction of an entity referred to in point (b) of this paragraph or listed in Annex III. Therefore, the expression "any other Russian person, entity or body" refers to something much more expansive. On the face of it, it has to mean that no "Russian person" in any sense can sue for non-performance arising from this regulation. | If you buy a house and your wife signs a quitclaim deed to you, that transfers to you whatever rights she has in the house. Similarly, if you and your wife sign an agreement that anything deposited in a particular bank account in your name would be your separate property, that would override the pre-nup as far as that account was concerned. Such an agreement could include a dollar limit per month or per year, or an explicit purpose, such as savings for a down payment. (It could be thought of as a gift to you of her share of any funds deposited.) Giving property to your parents or others with the understanding that it will be returned on your request might be seen as an attempt to evade the pre-nup, and a court might hold that the property was actually shared, if you ever do divorce. There might also be gift tax issues if the value is high enough. Whether asking your wife to agree to a quitclaim or any sort of agreement to modify the pre-nup would help or harm your marriage I cannot know, nor did you ask that. But I would think that for most people being open would work better than going behind a spouse's back. None of this should be taken as legal advice. I am not a lawyer. | Currently, there is no recourse The Russian state is sovereign. This means the Russian government has to tell the Russian courts that they allow people to sue Russia for specific, enumerated things. If the Kremlin has not done so, then Russia has total, sovereign immunity from such claims. In the united-states, the FTCA regulates how and when you can sue the USA or federal institutions for torts, while FSIA regulates how or when you can sue other countries in the USA. In russia, the Federal Law No. 297-FZ of November 3, 2015 "On Jurisdictional Immunities of a Foreign State and Property of a Foreign State in the Russian Federation" seems to be a very similar law to FSIA. I could not determine if an equivalent to the FTCA exists. Reparations would be handled by a peace treaty with Ukraine Besides a law that allows claims against Russia, a Ukrainian-Russian peace treaty might contain a passus about reparations. There are three very traditional ways how such handle reparations: In one case, such a treaty could establish that Russia pays the reparations to Ukraine, and then claims against Russia are paid out by Ukraine. In the other case, the treaty provides a framework to sue Russia for compensation. And in the last variant, no compensation for civilians is agreed upon at all. |
Do companies have the right to demand proof of being present in the EU before executing a GDPR request? Under the GDPR, any company doing business in the EU must remove EU users' personal data upon request from that user. Since the statute only applies to persons present in the EU, are companies legally permitted to demand that a user requesting personal data removal supply proof that they are present in the EU, so that they can deny the request to those outside? | the statute only applies to EU residents Wrong. GDPR applies to everyone in the EU (Art. 3). This means tourists are also covered. Residence status is completely irrelevant (Recital 14(1)): The protection afforded by this Regulation should apply to natural persons, whatever their nationality or place of residence There is no provision for data processors/controllers to demand proof from data subjects of them being located in the EU. You can challenge them, but if they refuse to provide proof you will still be liable to fulfill their GDPR request should they indeed be present in the EU. | … would face and voice count as personal information under GDPR? Absolutely. Does person B have the right to erasure … No. The right to erasure only applies in certain circumstances. While the initial reason for collecting personal data was consent, once it has been incorporated into a film, the processor now has a legitimate interest in the data. The right to erasure does not apply when there is a legitimate interest. | Yes, phone numbers would generally qualify as Personal Data under GDPR. It would be so irrespective of whether you have also stored other information along with the phone numbers or not, since also information that indirectly could identify a natural person is Personal Data (provided that there are, somewhere else, public or not public, a register of who holds the specific phone number). See Article 4(1) GDPR. (One could possibly argue that the phone numbers would not be considered personal data if there is no actual register of who owns a specific phone number with any other party. Or if such register is in practice not available for anyone. It might be so in some cases, although I would not rely on it.) Whether you have the right to process the phone numbers must be assessed based on its lawfulness (see Article 6 GDPR). It could be based on consent, performance of contract, legitimate interest or any other ground set out therein. | Is it actually necessary for businesses (such as a Small Town News USA Inc) that do not reside in EU to care about GDPR? Only if they offer goods/services to or monitor behavior of people in the EU (Art. 3(2)). Note that: having a commerce-oriented website that is accessible to EU residents does not by itself constitute offering goods or services in the EU. Rather, a business must show intent to draw EU customers, for example, by using a local language or currency. If it is then how (and by whom) would compliance be audited and/or enforced? Supervisory Authorities will care of it. | Your analysis so far seems correct. You must comply with all applicable laws. The GDPR's Art 6(1)(c) legal basis clarifies that having to provide personal data is no excuse: that legal obligation is all the legal basis you need for sharing the personal data in accordance with your obligations. However, that legal basis doesn't generally excuse you from your other data controller obligations. For example, you should still inform the data subjects about the processing as per Art 13(3). | However, if a website is based in the US and the terms of service say that the law governing the terms is US law, how can GDPR have any affect? It is unlikely that the EU will be able to enforce financial penalties against a company with no presence in the EU. But they could for example block your website in the EU, depriving you of your EU user base. The actual measures that they could or would take against such a company are still unclear, since the GDPR is quite new, and there has been no action under the GDPR against foreign companies. I'm not a lawyer, but I've signed many contracts in my life and nearly all of them have some form of "governing law" clause. The governing law clause in a contract identifies the law that will be used to interpret the contract and to resolve any disputes arising from the contract. The law identified in the clause does not become the sole law governing every aspect of the relationship between the parties, however. For example, a business in New Jersey could have a contract with a client in New York with a clause specifying New Jersey law as the governing law of the contract. But that does not mean that New York's consumer protection law doesn't apply to the transaction. | The data processor is not responsible for complying with the GDPR. You are ultimately responsible, since you are the data controller. The data processor is merely required to assist you, but it's unclear what that means in the presented scenario. Per Art 28(3)(e) GDPR, the DPA must require the data processor to provide reasonable assistance: That contract or other legal act shall stipulate, in particular, that the processor: […] taking into account the nature of the processing, assists the controller by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the controller’s obligation to respond to requests for exercising the data subject’s rights laid down in Chapter III; However, per Art 28(1) you can only engage processors that you deem sufficient to protect the data subject's rights: the controller shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject. Here, it seems that your company failed to ensure that the processor provides the features you need for compliance. Many companies claim to be GDPR-compliant, but that doesn't mean that your use of their services will be GDPR-compliant as well. Depending on how the Art 28(3)(e) requirement was implemented in the DPA you may have a right to assistance even if the processor doesn't implement necessary features in their software, but enforcing this contract could require a lawsuit in a foreign jurisdiction (but that's par for the course for international B2B contracts). It is worth noting that the GDPR right to erasure doesn't always apply. In a processing activity where no erasure right is likely to arise, it would be perfectly fine to use a data processor that doesn't offer any possibility for erasure. Similarly, it can sometimes be legal to use technologies like Blockchain or Git that make erasure difficult or impossible. However, it is the responsibility of the data controller to analyze the impact of such a choice up front, before commencing the processing activities. In some cases, this could require a Data Protection Impact Assessment (DPIA). Note that transfers of personal data into the US are illegal or at least questionable in the wake of the 2020 Schrems II ruling. The Privacy Shield is no longer a legal basis for such transfers. Standard Contractual Clauses (SCCs) are technically allowed, but only “on condition that enforceable data subject rights and effective legal remedies for data subjects are available” (cf Art 46). The ECJ's judgement calls this into question. This could be a further incentive to migrate to a more GDPR-compliant service. | If the data controller has “reasonable doubts concerning the identity of the natural person making the request”, then “the controller may request the provision of additional information necessary to confirm the identity of the data subject” (Art 12(6) GDPR). Until the data subject provides this information, the request is paused. But what are reasonable doubts, and what additional information can the controller request? The GDPR itself provides no clear guidelines, though general principles apply – the additional information must be necessary, adequate, and proportionate for the identity conformation purpose. The controller's obligation to comply with access requests must be balanced with the controller's obligation to ensure the security of data by rejecting invalid requests. Just accepting any request without any verification would also be a breach of the GDPR. For example: If the company identifies data subjects by email address, then demonstrating control over the email address would be an appropriate verification step. But just mentioning the email address would not be enough since it could be someone else's email address. If the company provides a website where data subjects have created user accounts, then being able to log in to the account would be an appropriate verification step. In these examples, asking e.g. for government photo ID would not be appropriate because that doesn't help strengthen the link between the person making the request and the personal data being processed. Such data collection would be disproportionate and unnecessary. In contrast, if you walk into a bank and ask for a copy of your data, it would be entirely appropriate for them to ask for government ID because (a) the higher general risks warrant stronger checks, and (b) such ID will help confirm that the person making the request is indeed the proper account holder. The bank will also have been legally required to request ID when the account was originally opened, so that asking for ID as an identity verification measure during this later request won't involve collection of more data than they already have. (These examples were made up by me and are not official, but read on.) The EDPB has issued draft guidelines on the right of access 01/2022, which also discuss the issue of additional information for identity verification in sections 3.2 and 3.3. In particular, paragraphs 73-78 talk about IDs: 73. It should be emphasised that using a copy of an identity document as a part of the authentication process creates a risk for the security of personal data and may lead to unauthorised or unlawful processing, and as such it should be considered inappropriate, unless it is strictly necessary, suitable, and in line with national law. […] it is also important to note that identification by means of an identity card does not necessarily help in the online context (e.g. with the use of pseudonyms) […]. 75. In any case, information on the ID that is not necessary for confirming the identity of the data subject, […] may be blackened or hidden by the data subject before submitting it to the controller, except where national legislation requires a full unredacted copy of the identity card (see para. 77 below). […] 76. […] Example: The user Ms. Y has created an account in the online store, providing her e-mail and username. Subsequently, the account owner asks the controller for information whether it processes their personal data, and if so, asks for access to them within the scope indicated in Art. 15. The controller requests the ID of the person making request to confirm her identity. The controller's action in this case is disproportionate and leads to unnecessary data collection. […] Example: A bank customer, Mr. Y,, plans to get a consumer credit. For this purpose, Mr. Y goes to a bank branch to obtain information, including his personal data, necessary for the assessment of his creditworthiness. To verify the data subject’s identity, the consultant asks for notarised certification of his identity to be able to provide him with the required information. The controller should not require notarised confirmation of identity, unless it is strictly necessary, suitable and in line with the national law […]. Such practice exposes the requesting persons to additional costs and imposes an excessive burden on the data subjects, hampering the exercise of their right of access. 77. Without prejudice to the above general principles, under certain circumstances, verification on the basis of an ID may be a justified and proportionate measure, for example for entities processing special categories of personal data or undertaking data processing which may pose a risk for data subject (e.g. medical or health information). However, at the same time, it should be borne in mind that certain national provisions provide for restrictions on the processing of data contained in public documents, including documents confirming the identity of a person (also on the basis of Art. 87 GDPR). Restrictions on the processing of data from these documents may relate in particular to the scanning or photocopying of ID cards or processing of official personal identification numbers. To summarize: controllers can request IDs only in comparatively niche scenarios, and must then take additional safeguards to protect the sensitive document (e.g. instructing the data subject to redact parts of the ID, not making copies, and immediately deleting the ID after successful verification). A lot here comes down to national laws, which may explicitly require or forbid use of the ID in this context. The EDPB guidelines are not binding or normative, especially since this guidance is still in the public consultation phase. However, the guidelines present an overall consensus of the national data protection authorities in the EU, and the guidelines are regularly cited by courts. In practice, many controllers do ask for disproportionate amounts of data. Sometimes this seems to be an attempt to discourage data subject requests, which would clearly be non-compliant. In some cases, this is due to a narrow interpretation of “reasonable doubts” in which they try to eliminate any doubt about the identity. If the data subject and data controller cannot agree on a suitable identity verification process, then the data subject can: Art 77: lodge a complaint with a data protection authority, and/or Art 79: sue the data controller in court, both for compliance (fulfilling the request) and for compensation (if damages were suffered). It is worth noting that the data controller is responsible for being able to demonstrate compliance (Art 5(2) accountability principle), such as demonstrating the apparent reasonable doubts to a supervisory authority or to a court. When the controller requests ID, the controller has the burden of proof to show that this is compliant. |
Are there countries that prohibit charging interest? Is it true that Saudi Arabia prohibits charging interest? What about UAE? Are there any states actually prohibit interest rates? | In Saudi Arabia, it is legal to charge (and pay) interest. However, according to this source, a contract clause requiring interest is not enforceable. An interest clause is severable, so the contract is not at risk if interest is charged. This source indicates an exception, that the Saudi Arabian Monetary Authority Banking Disputes Settlement Committee may enforce interest clauses in banking transactions. In UAE, Article 204 of the UAE Civil Code says If the subject matter of the disposition or the consideration therefor is money, its amount and type must be specified without any increase or decrease in the value of that money at the time of payment having any effect. and Art. 714 says If the contract of loan provides for a benefit in excess of the essence of the contract otherwise than a guarantee of the rights of the lender, such provision shall be void but the contract shall be valid. Art. 76 of the Commercial Code explicitly allows charging interest for commercial transactions A creditor shall have the right to demand interest on a commercial loan in accordance with the rate stipulated in the contract. If the rate of interest is not stipulated in the contract it shall be calculated in accordance with the rate prevailing in the market at the time of the transaction on condition that in this case it should not exceed (12%) per cent, until full settlement is made. This article from 2002 (behind the paywall, sorry) provides further analysis for Abu Dhabi. This page discusses similar rules for Kuwait, where again commercial transactions are exempt from the civil prohibition against interest. It is not clear where the line is drawn, but I think "commercial" refers to borrowing money for a business purpose, as opposed to buying your house. | I see that this would put me under heavy US regulation, and I'd like to avoid that, since it would require huge funding to hire lawyers to do something like that. There are many reasons for financial and banking industry regulations; namely, fraud protection, corruption and money laundering preventions, use of crypto to avoid taxes and records, etc. If you're serious about a startup that involves financial transaction, one of the first things you do is find a law firm to advise you on the legal plausibility of an idea. And be prepared to spend thousands and thousands of dollars in legal fees for regulatory approval. Would doing something like this solve my problem? You're really going to trust randos on the web for legal advice? | Financial institutions in the US are subject to regulations that restrict what sorts of things non-licensed employees can talk about with clients and advice they can give about structuring accounts and payments in ways that might avoid triggering money laundering alarms. I think this employee was being cautious about getting into a gray area and phrased the reason they couldn't talk about it poorly. The reason they were restricted from giving you an answer could be a legality, but not necessarily because they are giving you legal advice. | According to this site in the UK apparently there are laws against calling something free if it was part of the entire package before or if was added later and the price went up Example of the latter: LG sold a TV. They then added a sound bar, increased the price and listed the TV as TV for $XXX + free sound bar. They ran afoul of the regulations Also adding something and calling the addition free is okay if the price didn't go up but you can only advertize it as free for 6 months. After 6 months the law considers it included by default and therefore no longer free. | You have misread the DMLP page. In Pennsylvania, it is illegal to record a conversation if you are a party and if the other party does not consent. The fact that federal law doesn't ban something doesn't mean that states can't ban it. There is generally a presumption that when both the feds and the states can legitimately regulate something, the feds weren't trying to preempt all state laws on the topic. While people often say "federal law takes precedence over state law," the normal rule is that both laws apply; the federal law only blocks the state law if the feds wanted to block said state laws. So far as I can tell, the federal law has never been held to preempt two-party consent laws; the point of the federal law was to restrict recording, not extend it. It's like how federal law doesn't prohibit taking hostages inside the US to coerce a private company into doing what you want (anti-terrorism laws might, I guess, but the federal hostage-taking law doesn't); while the federal law excludes most hostage-taking in the US, that doesn't mean that it's legal to take hostages. Congress sometimes wants to establish nationwide standards for something, but the presumption is that they didn't. | There is no possibility of legally holding a country "to account" for an action. An individual could be legally tried for a crime (murder), and a country could via a political process be made to suffer the consequences if a leader performs some act (it need not be illegal). Germany, Iran and Russia have historically suffered certain consequences of actions held to be "officially sanctioned", and individuals such as Adolf Eichmann have been specifically punished; Fahad Shabib Albalawi and 4 others were sentanced to death for involvement in Khashoggi's murder. Punitive recourse against a country is always via political / military action. Khashoggi, specifically, was apparently a lawful permanent resident of the US, which is probably sufficient connection to the US for a suit based in the Alien Tort Statute. There have been various suits filed against individuals under this act, some of which succeeded, for example Filártiga v. Peña-Irala, 630 F.2d 876. An individual could be sued under the Alien Tort Statute, but a foreign government enjoys sovereign immunity (the US government has limited its liability on that grounds, but Saudi Arabia has not). His fiance might then sue some individual, but Saudi Arabia itself could not be "held to account". | You are mistaken: The U.S. governments (both federal, and states that impose income tax) assert a right to tax both: Income earned within their jurisdiction (e.g., "on their soil"), and Income earned by citizens (or residents, in the case of states). So it is perfectly legal for a resident U.S. citizen to operate a foreign business entity, earn profit, pay himself, and even bank the money overseas. However, a resident in such a situation would be in violation of tax law if he failed to report his interest in the foreign entity and his earnings, as prescribed by the IRS, on his tax filings. | Until it was found to be unconstitutional, Florida had a law against surcharges for using a credit card (the statute is still on the books, however). That was the only law against "convenience fees" related to making payments. Whether or not a business will accept a particular form of payment (check, credit card, money order, traveler's check, cash) is up to business. Apart from credit cards, there has been no law against charging for accepting a particular form of payment, but that charge would have to be part of the contract – the lease would have to specify in advance what the processing fee is for money orders vs. cash vs. credit card. The residential tenancies law of Florida does not prohibit incorporating fees into the terms of a lease (as some states do), so the lease can specify "$1500 for rent plus $10 for payment-processing, every month". |
If police don't know which apartment has criminal evidence, can they search all of them? Suppose the police have probable cause that there is evidence of a crime in an apartment that is part of a complex, but they can't figure out which apartment it is. Can they search all of them with a warrant? | If the police can get a warrant from a judge confirming that they have probable cause, they could, and that finding would probably be confirmed in a subsequent suppression hearing alleging that the warrant was issued without probable cause. But, it would be unlikely that a judge would issue a warrant that covered multiple apartments if there was not probable cause to indicate that evidence of the crime was in a particular apartment. I could imagine a situation where a judge might do so (e.g. the evidence was strapped onto a rat that had the ability to move from apartment to apartment in a wing of four adjacent apartments in the same wing of the building through the crawl space in the ceiling), but in any reasonably normal fact pattern, a judge would be unlikely to grant a warrant in a situation where probable cause had not narrowed down the particular apartment where the evidence was believed to be located due to insufficient investigation by the police. | Is asking police to justify their orders illegal? NO but the manner in which the "asking" is done may be. | The district court judge, as reported in this news story has held that there was probable cause to arrest Daniel Robbins in this case, and that his rights were not violated. If this ruling stands, officers acted legally, although they might still be required to return the phone with the images. Whether there is probable cause for an arrest (or a search) is always a very fact-based issue. I have not found the judge's actual decision, only a news summary of it, which can often be misleading. Specific facts about exactly what Robbins did or said may be important in determining whether there was in fact probable cause. It appears that Robbins intends to appeal this decision. If he does there may be an opinion from a Circuit Court of Appeals expanding on whether there was probable cause or any violation of rights, and why. Previous cases have established that normally there is no reasonable expectation of privacy for acts performed in public; that one my photograph or video record such public acts legally from anywhere that one may legally be; that there is a right photograph or record police officers engaged in official actions or the use of police powers; and that laws attempting to forbid such recording are unconstitutional when so applied. However, it seems from the news story that here the police officers were off-duty and not engaging in any official acts or use of police powers. That might change the ruling. I rather expect the district court's decision to be overturned, but there is no case exact;ly on point that i know of, and one can never be absolutely sure what a court will do in a particular case. I can see why police officers may have felt threatened, and why the Judge may have been inclined to sympathize with them, although I think the decision was incorrect. But a Judge of the Appeals Court might possibly feel the same way. Until the Appeals Court rules, one cannot be sure what the law in this matter will finally be. (It is possibly, but statistically a bit unlikely, there there will eventually be a ruling from the US Supreme Court on this case.) This article from Nolo Press discusses the issue of recording police, primarily in the context of police who are performing their official duties. It says: Almost every court to consider the issue has determined that the First Amendment gives you the right to record (pictures, video, and audio) police officers in public while they are performing their duties. But that doesn’t mean you’re allowed to record if you’re doing so surreptitiously (secretly), interfering with the officer, or otherwise breaking the law. The courts' primary rationale for allowing police officer recording is that the First Amendment includes the right to freely discuss our government, and the right of freedom of the press and public access to information. Given the prevalence of personal filming devices, more and more “news” is being gathered and disseminated by members of the public. The courts have found that freedom of the press applies to citizen journalists and documentarians just as it does to formal members of the press. (See, for example, Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).) The Nolo article goes on to discuss whether a Section 1983 Federal suit against police officers who arrest someone recording their actions will succeed, indicating that this will depend on the specific facts of the case. The Nolo article mentions that one is not allowed to interfere with an officer during process of recording. What exactly constitutes "interference" is not fully clear, and will depend on the facts of a specific case. The Nolo article mentions other circumstances when recording an officer may not be legal. | Silence is not cause. However, this may not prevent a search. The officer does not need to tell you that he has probable cause, he must simply have it in order to conduct a search. If he obtained the probable cause before he pulled you over (this is likely), then he will order you out of the car and search over your vociferous (and silent?) objections. If the officer does not have probable cause, searches anyway, and can't come up with a convincing one in time for the court date, then yes you have a claim. But remember, just because the officer didn't inform you of the cause doesn't mean it didn't exist. Always consult an attorney before any legal action. | If you read the first link, every offense can lead to arrest without a warrant. Notwithstanding, you don’t have to be arrested to be charged and vice -versa. | The Likely Ruling Assuming points 1 and 2 in the question, all the evidence from the trunk would be inadmissible, and if there really is no other evidence against Bob, then Bob would go free. This is highly improbable; the prosecution would find some grounds to dispute the unlawful nature of stop and search, even if ones the court would not accept. A better version might be "The judge rules that the stop and search were unlawful, and is upheld by the appellate court". That is more realistic and has the same result. Inevitable Discovery The only grounds I can see for any other result is "inevitable discovery". If other police were, say, already staking out Bob's house with a warrant to search the car, and Bob was on the way to that house at the time of the stop, then the prosecution could argue that they would inevitably have conducted a legal search of Bob's car and found the same evidence. The conditions for invoking this doctrine rarely occur, but it is possible. After the Trial There is no way that Cal's body can be Bob's property, so it would be released to Cal's next of kin or legal executor. Unless Bob was Cal's next of kin, it is hard to see any way that the body would be handed over to Bob. Cal's clothes are almost surely part of Cal's estate, although it is in theory possible that they are Bob's property. No claim of ownership can be used against Bob in a later trial, because any later trial would be barred by double jeopardy. In any case, while evidence from the trunk would all be inadmissible in a trial of Bob, it might be admissible in a possible later trial of Joe, Bob's alleged accomplice. Therefore the police might well retain all the items (except the body) as possible future evidence. Terminology This is actually about the exclusionary rule itself, not about the "fruit of the poison tree" doctrine. What is the difference? If an unlawful search finds evidence, that evidence is inadmissible under the exclusionary rule. If an unlawful search merely finds a lead, evidence later found via the lead is considered as "fruit of the poisoned tree" and is therefore inadmissible. For example, if the murder weapon is found in Bob's car after an unlawful search, the exclusionary rule applies. But if a note saying "stuf at 1234 Elm" is found during the unlawful search, and the police visit 1234 Elm Street, and find the murder weapon there, that is "fruit of the poisoned tree". Why does it matter? Because if the police find a different lead to 1234 Elm, so that the investigation or search at that address is not based solely on the results of the unlawful search, then the evidence found at 1234 Elm may be admissible, while corroboration will not save the evidence actually found by the unlawful search. It is a subtle but sometimes important distinction. | The situation you describe is extremely unlikely First, you will have been required to give a statement to the police who would have asked you most or all of the questions that you suggest before anyone gets anywhere near a courtroom and likely before any arrest has been made. That statement will be part of your evidence in chief. As in "Is this your statement?" "Yes". "Is this your video recording?" "Yes". After that, your evidence in chief is pretty much done. A witness of fact (rules for expert witnesses are different) can only testify as to what they personally sensed and what their state of mind was. So questions about what you saw, heard, tasted etc. are all perfectly legitimate as are questions about what you thought or felt. You are required to answer these questions honestly - if that means "I don't know" then say "I don't know". All of the hypothetical questions look fine but as I said, they will all have answers in your police statement. The only one that's off-limits is ""Do you feel that a crime has been committed?" - nobody knows if a crime has been committed; that's why we're having a trial. | The Google search is not itself a crime or any other kind of offense. It could be used as circumstantial evidence that you did something intentionally or with pre-mediation, rather than accidentally, or not at all. If you can provide an alternative explanation for the search that is plausible, such as the one in the question, and there isn't a close proximity of time, a jury is unlikely to give the search much weight as circumstantial evidence. But ultimately, the weight to give any piece of evidence is for the jury to decide in the context of all of the evidence in the case combined. |
Is illegally crossing the U.S. border a "serious" crime? First, I'll acknowledge that "serious" is subjective, however there is (probably) consensus that sentences imposed are reflective of the seriousness of a crime. USAtoday (6-18-18) USA TODAY examined 2,598 written judgments in border-crossing cases filed in federal courts along the border since mid-May. In nearly 70 percent of those cases, migrants pleaded guilty and immediately received a sentence of time served, meaning they would spend no additional time in jail. Another 13 percent were sentenced to unsupervised probation, including a condition that they not illegally re-enter the United States. In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted. full article here So, was there any point (in 84% of these cases) to invest time and effort in a criminal referral and prosecution? Does that suggest that the judges don't think that a serious crime has been committed? (Feel free to migrate to Politics if that seems to be the better place for this) | As you said, "serious" is a subjective description of a crime, but most lawyers would probably have the same first reaction when asked to make the distinction: Is it a felony or a misdemeanor? Felonies are objectively more serious because they come with longer sentences, as well as a variety of awful collateral consequences -- lost voting rights, disqualification from gun ownership, etc. By that standard, unlawful entry into the United States (8 U.S. Code § 1325) is not, in most cases, a serious crime. For a first offense, it's a misdemeanor punishable by at most six months in jail. For subsequent offenses, though, it's a felony punishable by up to two years. I'd agree that the sentences meted out suggest that the judges don't view this offense as a particularly serious one. But that doesn't necessarily mean that it was pointless to prosecute. For instance, the first prosecution enables a harsher sentence if the immigrant lands in front of the judge again, and I'd bet that a fair share of the harsher sentences involved repeat offenders. Also, if you think that being a nation of laws means that we should always enforce every law (or if you at least believe this when it comes to immigrants), then the prosecutions are their own reward. | When a country makes criminal laws, these laws usually apply to anyone present in the country, and acting in the country. But the country is free to declare that some law might apply to its own citizens in a foreign country, or even foreign citizens in a foreign country. Assuming the laws about using marijuana say nothing about the country, that most likely means it only applies to using marjuana in the country itself. But if the US government decided that taking marijuana in Canada is illegal for US citizens, then nobody can stop them. In this case, Canada would not extradite you (unless Canadian law says that it is criminal for Canadians to use marijuana in another country), and Canadian police would likely not collect evidence. So even if illegal, it would be hard to convict you. PS. The "polygamy" case would be interesting, I think you would have to read the exact wording of the laws in every country. Some countries will say that you can't get married twice, and the attempt to get married a second time while already married is bigamy. In that kind of country you wouldn't have committed a crime within that country. Also, you would only be married to the first wife. | If someone is arrested by federal agents and referred for indictment, they have to be processed by the federal justice department. Processing includes things like being fingerprinted and going before a judge to get bail set or denied. Federal protocols demand that the prisoner goes through this process without family members. Once the prisoner is processed, there is no detainment requirement. The prosecutor can request detainment, but prisoners could be released on their own recognizance, on payment of bail, or to another organization. For obvious reasons (flight risk), border crossers are generally released to Homeland Security rather than on their own recognizance or with bail. According to the LA Times: Rio Grande Valley border agents have prosecuted 568 adults and separated 1,174 children since zero tolerance began, Padilla said. Of those, 463 were reunited with parents “in a matter of hours” after they returned from court. It wasn’t clear how long the rest were separated. That was as of June 17th of 2018. There isn't a breakdown of why some families were separated longer. TL;DR: No, it is not a requirement that prisoners be kept by the Marshals. It is a requirement that they be processed separately from people not being prosecuted (e.g. their children) and members of the opposite sex (e.g. most spouses). After processing they can return to detainment. | Strictly speaking, that principle isn't even true everywhere in the US. The maxim "nulla poena sine lege" (i.e. "no punishment without a prior penal statute") was historically applicable to civil law systems, such as are found in continental Europe. In common-law systems, there was never a tradition in which a crime wasn't a crime unless it violated a penal law, because crimes themselves were traditionally defined by court precedent instead of by statute. In US federal court, the only allowable common-law offense is contempt of court. This is due to a court decision (United States v. Hudson), in which the Supreme Court ruled that federal courts do not have the constitutional authority to hear a case in which someone is accused of committing a common-law crime. Even so, and even though there is a federal contempt statute, the Supreme Court has ruled that contempt is an inherent power of any court, and statutes around it only regulate the power (but the power would be there even without a statute). At the state level, some states have explicitly passed laws saying something is not a crime if it doesn't violate the penal code (although this doesn't necessarily apply to contempt); see section 6 of the California Penal Code for an example. In other states, like Florida, common-law crimes still exist; Florida has a statute saying that any common-law offense is still a crime unless a statute has explicitly covered that same subject matter (section 775.01), and specifies a generic penalty for anything which is an offense at common law and not addressed by any Florida penal statute (section 775.02). While this is sort of statutory (as it's a statute giving the penal provision), it's also basically not (as no statute has to say "X is illegal," because it's enough that English common law makes X illegal). | Unless there is enough evidence to convict one or more of the suspects, none will be convicted. In general the argument: We know it must be one of you, but we don't know whch, so we find you all guilty. is not allowed in any non-dictatorial jurisdiction. Just how much evidence is needed for a conviction varies by jurisdiction in theory, and by judge or jury in practice. Also, it would be possible to charge several of the residents with having acted jointly in the crime, but there would still need to be sufficient evidence against each defendant to obtain a conviction. | It's not odd to extradite people who are accused of crimes. The US has extradition treaties with many countries: see List of United States extradition treaties - Wikipedia. Extraditions are also recognized by international law: Extradition - Wikipedia As for El Chapo, the reason for his extradition is The decision to extradite Mr. Guzmán was an about-face for the Mexican government, which once claimed that he would serve his long sentence in Mexico first. However, after his Houdini-like escape in 2015, when his associates tunneled him out of Mexico’s most secure prison, officials began to reconsider.... When he was recaptured early last year, after one of Mexico’s most exhaustive manhunts, the government publicly said it would allow the extradition of Mr. Guzmán, thus relieving itself of the potential embarrassment of another escape and preventing further souring of its relationship with the United States. El Chapo, Mexican Drug Kingpin, Is Extradited to U.S. - The New York Times | It should be pointed out that smuggling doesn't just involve illegal goods but also includes legal goods that are brought in without following proper procedures such as paying required duties. https://www.findlaw.com/criminal/criminal-charges/smuggling-and-customs-violations.html False Declarations; Exporting violations; and Importing violations. False declarations can happen when a person returns to the U.S. or enters for the first time. They must declare the value of any goods they are bringing in from overseas. You can violate the law by misrepresenting the value of the goods, omitting them from the declaration form completely, or making false representations. Also, if you fail to disclose leaving or entering the country with $10,000 worth of currency, you can be criminally charged. While I am not a lawyer I could see that the authorities might have an issue with someone pulling a stunt like that in order to "test" them. Even if there is no legal issue the person could be put through a lot while they run tests to confirm that nothing illegal is being brought in and there is nothing preventing them from making the process as long and painful as they can. Something else to consider they also have rules in place for brining other legal objects on board planes if they resemble objects that are not allowed. https://www.tsa.gov/travel/security-screening/whatcanibring/items/toy-guns-and-weapons Squirt guns, Nerf guns, toy swords, or other items that resemble realistic firearms or weapons are prohibited. We recommend emptying water guns, which must follow the 3-1-1 Liquids Rule. Replicas of explosives, such as hand grenades, are prohibited in checked and carry-on baggage. TSA officers have the discretion to prohibit any item through the screening checkpoint if they believe it poses a security threat. It is also possible to be charged with selling fake drugs and the local authorities can bring those charges and it can become their word versus your word about what your intentions are. In this case you might not be intending to sell them but it would be impossible to argue that you are not trying to pass it off as fake drugs. https://www.criminaldefenselawyer.com/legal-advice/criminal-defense/drug-charges/jail-selling-fake-drugs.htm Question: I sold a baggie of aspirins that I said was OxyContin to a guy at a concert. After the show, I heard that there were undercover officers in the crowd. Could I be busted for selling fake drugs? Answer: Yes. States and federal laws make the sale of fake drugs illegal, and you can even be charged with an attempted drug sale under some laws. | It depends on your location. A felony conviction can limit your rights in various ways, and those rights may or may not be restored at the state level. See this article for discussion of federal convictions and collateral civil disabilities. The Dept. of Justics says that "a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of your conviction", and "most civil disabilities attendant upon a federal felony conviction, such as loss of the right to vote and hold state public office, are imposed by state rather than federal law, and also may be removed by state action". This article surveys civil disabilities of convicts on a state by state basis, as well as at the federal level. For example, voting rights are set at the state level, so a state has to have statutes restoring rights upon a pardon if you are to get your voting rights back. Service on a federal jury would be restored per 28 USC 1865(b)(5); the federal felon in possession crime has an exception encoded in it in the definition of "crime punishable by imprisonment for a term exceeding one year" which says What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. So if you are a state felon, you need a state pardon (or other state procedure) and if you are a federal felon, a state pardon does no good, you need a federal pardon. However, 21 USC 862 makes mandatory the ineligibility for federal benefits after a third conviction for drug trafficking (either state of federal law), and there is no "rights restoration" clause that restores such rights after a pardon even if the convictions are all federal. I have not located any case law establishing whether federal benefits rights restoration for federal convictions flows automatically from a federal pardon (not many 3-time drug dealers get federal pardons). A federal felony conviction can also be used as a factor in granting a security clearance (applicable to certain jobs), and current law does not say that a pardoned conviction cannot be considered in deciding on a clearance. |
Is it possible to renounce your right to divorce When you get married, is it possible to enter into a contract renouncing both parties' right to a divorce? If that is not possible how much can you limit the right to a divorce with a contract or something similar? | When you get married is possible to have contract renouncing both parties right to a divorce. No. That clause would be redundant, materially indistinguishable from breach of contract, and otherwise unenforceable. It is redundant because the legal definition of Marriage (Black's Law Dictionary) states that it is "A contract, according to the form prescribed by law, by which a man and woman [...] mutually engage with each other to live their whole lives together in the state of union which ought to exist between a husband and a wife". Thus, the perpetuity as expressed in the term whole lives preempts the conceiving of an eventual separation. Insofar as marriage is legally cognizable as a contract (see legal definition), it might specify or imply remedies in the event that one or both spouses decide(s) that substance of marital relationship no longer exists; that is, in the event that a breach of that contract occurs. A court may order to the breaching spouse performance of certain acts (for example, alimony) in accordance to statutory law or common law. However, a prohibition to divorce goes beyond the scope of what is legally permissible. The U.S. Supreme Court in Roberts v. United States Jaycees, 468 U.S. 609, 617-618 (1984) helps explaining why a prohibition to divorce would be unenforceable: "In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty." If that is not possible how much can you limit the right to a divorce with a contract or something similar? There is no possible limit or requisite duration of a marriage, as that would inherently infringe a person's fundamental element of personal liberty mentioned in the Roberts case. | This is complicated. This is state dependent, and as of time of writing, you haven't disclosed what is the relevant state. This is something you should hire/retain a (divorce) lawyer, and discuss with them. The law can be messy; divorces are always messy. The answer is the most common answer in law: it depends, on specific facts. See above, get a lawyer. The first question is "is the money in this investment account a shared asset that I have any claim to". The answer is "it depends". What state are you in, and where did this money come from? Depending on various factors, the answer might very well be "no", in which case, this money (and it's loss) may not affect you at all. If you do have some claim to this money, then it gets even more complicated. "Can this asset be retrieved in a court proceeding and say that he was squandering money?" Maybe, kinda. Technically no (because of the way you phrased that). I'll explain. In a divorce, "shared" assets are divided equitably (Note "equitably" does NOT mean "equally") based on numerous factors, often on a case-by-case basis, and which factors depend on the state. (Therefore, the lawyer you retain should be licensed in the state you/your husband are filing for divorce in). Before your divorce, both sides have (in general) the right to use shared property. They do not have the right to intentionally damage or destroy said property. One complication/grey area is normal use that degrades or damages the value of said property. For example, imagine a classic sports car. Many people drive them for fun; this is normal use. On the other hand, using a classic sports car decreases the value. Is using the sports car unreasonable damage? This is a fact based determination to be made based on specifics. Can this asset be retrieved in a court proceeding [if I] say that he was squandering money? (correction to what I think think you meant). Maybe, but probably not. You can say whatever you want in court, but what matters is what you can prove, as you are the bearing the burden of proof due to making the accusation (and you must prove it to the standard required by the court in your case for your particular motion/accusation, which might be the standard of "the balance of probabilities/more likely than not" or "clear and convincing evidence", or something else; it's complicated, fact dependent and state dependent, so get a lawyer). You don't need to prove that he lost money. If he was day trading before, the fact that he was day trading after the separation is not held against him; day trading is risky, therefore you have to prove that he intentionally lost money (and, potentially, that he intentionally lost money to deny money to you in the divorce, as opposed to e.g. tax loss harvesting). I would recommend hiring a divorce lawyer and discussing it with them. | Joint tenancy means that you both have equal (full) rights to the entire property, so just as you don't his permission to live there or to invite guests, he doesn't either. Unless they threaten you in some way (and you get a court order barring them from entering), there is no legal means to deprive an owner of their property rights, while they are still an owner. | No law in the US requires that parent and child have the same last name. It is usual that a child's name match that of at least one parent, but not required. A parent can change his or her name, without changing the names of any existing children. Also, when a child is adopted, the child's name need not be changed to match the name of the parents, or either of them. I have read of cases where a widow remarries, and takes the name of her new husband, but an adolescent child retains his or her birth surname. I suppose this would also be possible legally if it is the husband who changes name on remarriage, but i have not read of such a case. I think, but I am not sure, that a child's name could be changed to a different name than the name of either parent. It may be that this would only be done if the child is old enough to understand and agree to the change. | No. Whatever clauses and terms existed in this contract, a second contract between the parties could modify it to remove such a clause, or to directly make such an amendment, or to annul the contract entirely. You can make it a requirement that amendments be unanimous among the parties (as opposed to e.g. unilateral, allowing one party to make certain changes, variously without approval or without notice). Such a clause may also be unenforceable for another reason, but this doesn't fit any of the general points for unenforceability, except perhaps being against public policy if a jurisdiction happened to regulate contracts to that degree. | You are not legally responsible for your spouse’s acts or omissions. However, in most jurisdictions most assets of a married couple are legally jointly held which means any judgement against your spouse exposes the jointly held assets. | Is it legal to redefine a term against common sense in a contract? Generally speaking, yes. What matters is that the contract be clear enough for the parties to be aware of the terms and conditions to which they are committing. Both of the scenarios you outline seem lawful. They are binding to the extent that the definitions & language therein duly inform the parties of the substance of the contract. Definitions in a contract are most pertinent where the meaning of a term is intended to supersede and replace the commonplace meaning thereof. A contract would become null and void if the substance of that contract contravenes legislation. If legislation outlaws not only the effect of a clause but also its meaning, then the [un-]lawfulness of that clause is not altered simply by crafting definitions of terms. In other words, laws or legislative intent cannot be elluded by relabeling concepts in a contract. Whenever lawful, the attempt to trick a party with tactics (such as the use of uppercase you mention) is likely to be voidable by that party. The rationale is the same: The draftsman's attempt to confuse the user contravenes the contract law tenet that the parties knowingly enter the contract at issue. Notice that in the preceding paragraph I wrote "whenever lawful" rather than "although lawful". The reason for that choice is that, in some contexts, the draftsman's tricky attempts might constitute a deceptive practice and thus be in violation of the law (for instance, consumer protection laws). | The modern rule is that individuals in a married couple are almost never considered a single person (ownership of real property in a tenancy by entireties in a few states mostly in the Northeast, is a narrow and rare exception). Historically, considering a married man and woman to be a single person (a legal doctrine called coverture) was common place in the common law, but almost all such rules have been superseded. Lots of the relevant law and legal history is considered in the answer to this question at Law.SE. |
Is it possible to refuse offering service to GDPR-protected customers? Let's say I have a service that asks registration details from the user and for some reason I, as a provider of that service, can't comply to GDPR and therefore want to refuse registration of new users protected by GDPR or similar law. Is it possible to add a clause in the registration form requiring user to cancel registration of their new account if they are covered by GDPR (or, better, any similar law)? For simplicity let's assume that I don't have to worry about existing users. Update: I see similar question that seeks to achieve the same effect by means of introducing filters or by other disruptive means, this is different as it relies on EULA that user should accept before proceeding to use the website. | Yes, you could do this be means of the EULA, provided you are not in the EU yourself. You only have to comply with the GDPR if you are offering a product or service to people that are in the EU. If you are making it clear that whatever you offer is not available to Europeans, you make your site exempt from the GDPR. | The GDPR only require explicit (hard) consent if you use the cookie to store personal data. Given the conditions you cite, the data you store is not personal data, so this cookie does not require consent. In theory, someone having access to both session cookie and "analytics cookie" could relate the two, but that is highly non-trivial. You may have to do DPIA to demonstrate that this is non-trivial, or that you have mitigation in place to mitigate staff abusing such access. But provided things are as you say, the "analytics" cookie does not require consent. | is this even legal? It is legal, but at the same time the contract is voidable by you. This means that if the buyer rejects the EULA, he is entitled to return the unused product and be reimbursed. Obviously once the buyer has used the product, the conclusion will be that he accepted the EULA and therefore no longer can void the contract. The buyer's entitlement to rescind the contract compensates for the fact that he was not duly informed about the conditions prior to making the purchase. | The conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. As for it being legal for website operators to log the IP-addresses of visitors, this is covered by the following paragraph (also pointed out by phoog in a comment). The paragraph says it is legal to process personal data if processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. (my emphasis) You are not the only web site that logs IP addresses for the purpose of security. Every web site I've ever worked on - from those controlled by large corporations to tiny NGOs - do this. This security practice will not be impacted by the GDPR (if it were, I am sure we would have heard about it by now). there is the EU cookie law too If your website are going to be accessible to European citizens and not only accessible by your friends and familiy, you have to comply with the EU cookie directive of 2002 (a exemption for "personal websites" does not exist). | IP addresses are personal data. That means you need a legal basis to process them, but not necessarily consent from the user. That IP addresses should be treated as personal data in most contexts is clear, regardless of whether you can associate the IP address with a user ID. That you make such an association affirms that both the IP address and user ID are personal data in your context though. As the answers in the questions you linked indicate, there are alternative legal bases to consent. The GDPR offers a choice of six legal bases (Art 6(1) lit a–f). In most cases, you would instead rely on a “legitimate interest” for logging. But it's not enough to claim that you have a legitimate interest. You must have a clear purpose for which such logs would be necessary, and you would then have to weigh this legitimate interest against the interests, rights, and freedoms of the affected data subjects. If such logs are necessary for security and anti-abuse purposes, your legitimate interest test is likely to prevail. However, you must limit retention of the logged data and the included information to what is actually necessary. For example, keeping user IDs in there might not be necessary. If the association of IP addresses and user IDs is not necessary for a legitimate interest, then you would indeed need consent. Discussion on why IP addresses are personal data. You see many answers and opinions that IP addresses might not be personal data. Some of these are technically correct, but most are misinformed or outdated. I know only a single well-informed person that still disagrees. For everyone else such as the EU Commission, IP addresses are clearly personal data. Under the GDPR, personal data is any information that relates to an (indirectly) identifiable natural person. In the context of log files we can assume that the entries usually “relate” to a person, namely the person making the request. The exception would be requests triggered by automated systems. The more interesting question is whether the person to which the log entry relates is identifiable. While the GDPR does provide further guidance on the concept of identification in Recital 26, it does not provide clear unambiguous criteria. Thus, there is lots of debate about what that precisely means. One approach is to sidestep that debate and and notice that the GDPR's definition of personal data explicitly notes that a person might be identified “in particular by reference to an identifier such as a name, an identification number, location data, an online identifier” (Art 4(1)). Another but otherwise unrelated part of the GDPR mentions “internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags” as examples of online identifiers (Recital 30). We can also look more deeply into Recital 26 and see that “singling out” already counts as identification. We can use the IP address to single out one person's log entries from the set of log entries, so this could be interpreted as meaning that any stable user ID renders the data personal data – and an IP address is sufficiently stable in this context. Another part of Recital 26 says that we must consider “all the means reasonably likely to be used” for identification, even if this involves additional information from third parties. This phrasing is virtually identical to the GDPR's predecessor, the EU Data Protection Directive. On the basis of that DPD, the EU's top court (ECJ/CJEU) was asked to rule on the question whether dynamic IP addresses are personal data (the Breyer case, C‑582/14, judgement from 2016-10-19). It said yes. “It did not say yes”, some people will object. And they are technically correct. When someone rents an internet connection from an ISP, the ISP will have logs that connect the user's real-world identity to the IP address they were assigned at a time. You don't have access to the ISP's logs. But, if that user violated your rights (e.g. a cyberattack or copyright infringement), then you could (depending on civil vs criminal matters) report this to the appropriate authorities or to petition the court and they would have the right to order the ISP to disclose this information. The CJEU said that if this chain (you → authorities → ISP → user identity) is grounded in law, then the IP address would be identifiable. But whether there are suitable laws to compel the ISP to disclose this data would be up to national laws, and the CJEU doesn't concern itself with that. Spoiler: such laws are pretty common. To summarize typical objections: The IP address doesn't relate to a person: Can be a valid objection, but is not typically the case for user-facing web services. The Recital 30 argument is not valid because it's about profiling, not identification, and it only says that IP addresses may be used for profiling, not that they are always identifying: Technically correct, but I think that Recital 30 merely expresses the implied understanding that of course an IP address is an online identifier and permits identification by itself. “Singling out” does not apply because SOME_REASON: Indeed, this is an ill-defined term with no case law to guide us. However, regulators such as the EDPB and their predecessor WP29 routinely use “singling out” to mean being able to distinguish one person's data from other people's data. An IP address lets us do that. The Breyer judgement is not applicable because the defendant in that case was the German state, and the state has other legal means than ordinary website operators: Nothing in that case was specific to the website operator being a state or other authority. If the website operator can contact the appropriate authority and if they have the right to order the ISP to disclose the relevant data, then the IP address is identifiable. The CJEU didn't say “yes” in Breyer, it said “if”. So I'll take that as a “no”: The CJEU concerns itself with the interpretation of EU law, not with national laws. Specifically in the Breyer case, lower courts confirmed that German law has the necessary means. In other EU member states, further checks would be necessary but it would surprise me if there wouldn't be equivalent subpoena powers. If the ISP doesn't have the data, then the IP addresses are anonymous: Indeed, the CJEU scenario collapses if there is no additional data to be linked with the IP address. However: The CJEU used this scenario as an example to show that IP addresses can be identifiable. If that particular scenario fails, there could be other scenarios that still allow identification. The question of whether IP addresses are identifiable had of course been the subject of wider debate at the time. That the GDPR explicitly mentions IP addresses can be seen as a reaction to this debate. Thus, in a sense, the Breyer case is moot. It is still useful as an explanation of how broad “reasonably likely means” must be interpreted. | First take a look at Article 13(1) of Directive 2002/58/EC Article 13 Unsolicited communications The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use. Note that this is a Directive, so it is not directly binding, but each EU member state has created it's own laws containing this. I also quoted paragraph 2 for completeness, but based on your description, it does not apply. Article 95 GDPR explicitly specifies it does not change any obligations from Directive 2002/58/EC. So it looks very clear to me the situation you describe is not legal. Article 14 GDPR allows you to request all information regarding this, which included information how they have exactly obtained your name and email address. | There is a lot going on in this question, so I'll pick out some individual aspects. Last but not least, I'll discuss if GDPR even applies. Does the GDPR require consent for X? Almost always, no. Consent is only one of many legal bases of processing. A common alternative to consent is a “legitimate interest” where a balancing test is performed between this legitimate interest and your interests, rights, and freedoms. Consent is typically only appropriate if this balancing test fails, for example if you would not reasonably expect this processing activity to occur. It's worth noting that it's a reasonably common occurrence that businesses are sold or merged. This is not unexpected. In general, you would not be required to consent to such a transfer. What can a company do with personal data acquired through a merger/acquisition? The GDPR does not provide explicit provisions for this case. But it might be useful to think about the two cases where (a) the new company is a continuation or successor of the original one, and (b) where the data is transferred (“sold”) to an otherwise unrelated company. In case (a) where the business is continued as normal, there is no change. In case (b) where data is transferred to a separate company, things are more complicated. The original company would need a legal basis for transferring the data. But as mentioned above, there might be a legitimate interest. Arguably, such a transfer could also be based on Art 6(1)(b) if the transfer is necessary to continue to provide the service, for example if the original company would otherwise have to terminate service. Of course, activities like data brokering where access to data is granted to unrelated third parties would generally fail to be covered by contractual necessity or a legitimate interest, and would probably need consent – but that doesn't seem to be the case here. When a data controller (such as the new company) acquires your personal data from sources other than directly from you, then they are subject to the notice requirements in Art 14. They have to actively notify you about their processing activities. But because you received emails that mentioned the transfer, this condition might have been met. Of course the new company continues to be bound by the purpose limitation principle as detailed in Art 6(4) – they can only use the data for purposes that are compatible with the purposes for which the data was initially collected. Thus, the new company cannot arbitrarily widen processing purposes, though some change in scope is certainly permissible. How does the GDPR right to object and to restrict processing apply here? The Art 21 GDPR right to object means that if the legal basis for a processing activity is a “legitimate interest”, then you can ask for an opt-out. But in some cases, this objection does not have to be granted. An objection essentially requires the controller to repeat the legitimate interest balancing test, taking into account the “grounds relating to [your] particular situation” that you provided in the objection. The Art 18 GDPR right to restrict processing is an alternative to the right to erasure. It applies only in narrow circumstances, for example while an objection is being checked. It is likely that you were informed about the transfer to a new company about 1 month in advance, so that you would have been able to prevent this transfer by closing your account prior to the deadline. If the new company conducts processing activities based on a legitimate interest, then their presumably GDPR-compliant privacy notice about which you were notified will certainly explain that you have a right to object. Is the new company GDPR-compliant? That is impossible to tell, but nothing you've shown so far indicates that they're non-compliant. My largest issue with this story is that the new company is from Australia, a country with extraordinarily bad privacy protections (as of 2022). However, due to the way how the GDPR treats international transfers of data, this doesn't prevent Australian data controllers from being GDPR-compliant, although it does make it difficult for other companies to use services based in Australia. Does GDPR even apply? Whether GDPR applies to a non-European company depends only on whether they either offer goods or services to people who are in Europe (“targeting criterion”), and whether the monitor people's behavior that takes place in Europe. Factors such as your citizenship would be irrelevant. I'll ignore the monitoring criterion, and focus on the targeting criterion. I'll assume that you are in Europe (EU/EEA or UK). Whether a company is targeting people in Europe depends primarily on the company's intentions. It does not matter whether the service is accessible from Europe. Thus, it is quite possible that the original company was not subject to the GDPR. Then, any questions about GDPR, consent, and data transfers are moot. In contrast, the new company clearly mentions GDPR-compliance, which would only matter if they intend for people in Europe to use their services. So GDPR probably applies to them, giving you the full suite of GDPR data subject rights as (hopefully) outlined in their privacy notice. And as long as they notified you that they acquired your personal data in accordance of Art 14, I don't seen anything that they might have done wrong in respect to this acquisition/merger. | Update: On 1 October 2019 the CJEU ruled in Case C‑673/17 (Verbraucherzentrale Bundesverband vs. Planet49 GmbH) that cookies require explicit consent regardless of personal data is being processed. (Where the exceptions don't apply). (paragraphs 68-70 of the ruling). That does probably invalidate my answer below. However, because I have based my answer on information provided by the Dutch DPA, I will not update my answer until that DPA has responded on this. 'By clicking agree or continuing to use this site you agree to our privacy policy' Neither of theses options is considered clear consent. Continuing to use the site, is implied consent, which is not sufficient. Also it does not give you the option to reject. Clicking agree to agree the privacy policy is not specific enough. You must offer a separate opt-in box for everything for which you need consent. The privacy policy is just a text in which you explain your privacy policy. It is not a contract which needs agreement. Also keep in mind that withdrawal of consent must be as easy as giving it. So you must be able to return to the settings and change them. Having said that, it is possible to configure Google Analytics in a way you don't need consent; Accept the Data Processing Amendment Go to Admin Choose Account Settings Scroll down to the data processing amendment Accept it Click Save Disable Data Sharing Go to Admin Choose Account Settings Scroll down to the data sharing settings Uncheck all checkboxex Click Save Disable Data Collection for Advertising Go to Admin Choose Account Settings Choose Property settings Choose Tracking info Choose Data collection Turn off these two options Click Save Disable the User-ID feature Go to Admin Choose Account Settings Choose Property settings Choose Trackinginfo Choose User-ID Turn off these options Click Save Anonymize your visitors IP Address Add { ‘anonymize_ip’: true } to the tracking code on your website Even though you don't need consent, you still need to add a few lines to your privacy policy: You are using Google Analytics cookies. You have a data processing agreement with google. You have enabled IP anonymization/masking. You have disabled data sharing. You are not using any other google services in combination with Google Analytics. The Dutch DPA has a more complete manual, but unfortunately it is not available in English. |
Why do tech companies incorporate in Ireland instead of Seychelles? Ireland tax rate is low. 15%. However, Seychelles tax rate is even lower. It's 0%. So why bother incorporating in Ireland? I mean are there any laws in US, Ireland, or Seychelles that motivate IT companies to incorporate in Ireland instead of tax haven like Belize? | Why not Seychelles? Because Seychelles is internationally recognized as a tax haven in important ways that Ireland is not, particularly with respect to tax transparency and disclosure rules. Locating yourself in the more egregious haven states will subject you to additional scrutiny in the United States and elsewhere. Why Ireland? Ireland's tax structure also lends itself to certain tax sheltering techniques that can be particularly useful for tech companies. | Suppose you could. Now the proceeds of the sale belong to the shell company. What good does that do you? If you want to use the money to buy stuff for yourself, the shell company has to pay it back to you as a dividend or salary or something, and that payment will be taxable income to you personally. This might even come out worse for you: if you had held the bitcoins for more than a year, and sold them yourself, you could benefit from the lower long-term capital gains tax rate. But if you collect the funds as salary or dividend, you pay the higher ordinary income tax rate. | Article 8 is pretty clear. The fact that it is recommended to extend the draft to women indicates that there is a conflict needing resolution. A relevant case before the European Court of Human Rights ruled on this and found the law to violate articles 14 and 8 of the ECHR. They identify an exoneration from the tax under the Military-Service Exemption Tax Act sect. 4. Reading the judgment could be helpful (maybe you know the case). What I get from it is that there are a bunch of situation-specific details that could be applied (e.g. you have to first complain formally in-country before going to ECHR), and issues of disability level and the distinction between disability and illness. This gives a model for anyone to attempt to resist the tax, but only a change in the law will get rid of it. | Visa is incorporated in Delaware. So is MasterCard. In addition, both are headquartered in the US, have huge quantities of assets in the US, do lots and lots of business in the US in a highly regulated sector, and their very existence depends on their ability to interact with the US banking system. The US has the authority to regulate all of these things, under literally any definition of sovereignty. Therefore, they must comply with sanctions. | Sure You run a restaurant employing relatives and cronies and you scrupulously pay them and their taxes. Say $500k. That is clean money. You take some money from running the restaurant but not enough to cover costs. Say $200k. However, you declare that your revenues were actually $800k with the difference being $600k of dirty money which “customers” paid in cash. You pay your taxes on your $300k profit and now have nice clean legitimate money. Now, what legitimate businesses typically do is underreport their cash income to minimise taxes but a laundering front overreports and pays too much tax to clean the money. For every $1 of dirty money going in you only get 70c out (or whatever depending on local taxes) but that money is clean. | Yes. A company from one member state may do business in any E.U. state so long as it complies with local law in the course of doing so. For example, a Dutch company doing business in Germany must still pay German taxes and comply with German labor laws for its German employees. But, it doesn't have to form a German subsidiary to do business in Germany. | I know in general freelance work is not taxed Your “knowledge” is wrong. In general, all income is taxed. Some jurisdictions may exempt certain income derived from hobbies that are not businesses but this is by no means universal. | My understanding is that the "flow-through" treatment is specifically a tax law concept. The LLC has its own income, which it can use to pay expenses or acquire assets or for whatever other purpose, and such assets become the property of the LLC. It's just that when it comes time to pay taxes, the LLC's net income is taxed as income to the owner. But that does not mean that the LLC's income is treated the same as the owner's income in all other legal contexts. |
Is the formalism "I put you on notice" important, in UK law, or can a less formal wording be equivalent? Example case: a high value car specialist/expert sold me a car with a serious defect they should have known of and disclosed (such as past accident history) while warranting the condition was good/undamaged. It could actually be any high value asset sold by a skilled specialist. The vendor is likely (in my view) to dispute the scale of the issue, and can't be asked to do any repair. They probably should inspect and may wish to commission a report. For whatever reason I don't seek repudiation/rescission, perhaps I've begun using the asset and I will best mitigate my loss by paying some specialist to repair the defect. But I need to do the repair work soon, it can't be left long. So, anticipating at least a legal claim (High Court rather than County Court size) even if it resolves before a hearing, I want to write to them and say something like this: "I currently intend to have the asset repaired, to minimise my losses by repairing the defect, and this must be done very soon. I therefore place you on notice that if you wish to examine the defects yourself, you must make arrangements to do so within 21 days, and if you choose not to do so, then after this time it may not be possible to do so other than from photographs and engineer's reports. This may be detrimental to any defence if the matter goes to a court." My question is, the last part absolutely covers me and ensures any claim that they couldn't examine, doesn't prejudice my position. But it's formal and also quite antagonistic. I'd like to word it a lot softer by missing out the words "I therefore place you on notice that", and simply start with "If you wish....", which makes it softer but doesn't remove any of the rest. My question is, is there any magic about the formal wording "I place you on notice that" (or magic effect on the protection I get from those words), which will be lost if I don't use that exact form of words? Or can I reword it more collegially by removing that clause without impact? Also does it add anything to have stated the effect if they do not do so ("This may be detrimental..."), if the matter proceeds to a court case? | The language "I therefore place you on notice that" in your proposed missive is superfluous and adds nothing that is legally relevant. Flourishes like that are common among former paralegals, court clerks, common law country notaries, and other non-lawyers who want to sound legalistic but don't really have the relevant legal knowledge. It is common to say "I put so and so on notice that" in a legal opinion or a summary of a case, but mildly uncommon and not necessary to put those magic words in the notice itself in a situation like this where there is no prescribed statutory language that must be used on a specific legal form. In this situation the important thing is that the person is actually made aware of the situation, not that you conform to a statutory form. Also does it add anything to have stated the effect if they do not do so ("This may be detrimental..."), if the matter proceeds to a court case? If they complain of a lack of an opportunity to inspect in a later court case, it allows you to say, "I told you so and I gave you a chance to do something about it" which might be fairly convincing to a judge and would probably overcome any arguments that you engaged in spoliation of evidence. | Are you at fault for the fact that Car C read ended you? Close call. A jury could go either way. Can this accident which is now appearing on your insurance be disputed as Car A did not report anything? Essentially I'm just wondering what the odds are that this can removed from Car A's record. I think that it is unlikely that the situation you suggest would happen, even though anything is possible. Usually there needs to be a claim of actual damage for an insurance company to treat it as an accident. The usual rule is "no harm, no foul" (unless someone is cited for a traffic violation). Insurance company accident records are not regulated to the same extent as say, credit reports. You could threaten to sue the company for negligent misrepresentation, or the driver of Car C for defamation, in order to try to get this statement removed, but those would be hard cases to win since you are at least arguably at fault and fault is to some extent a matter of opinion. It would be much easier to win a suit like that if the accident didn't happen at all. Here, it would be undisputed that an accident happened at a particular time and place involving certain cars and drivers, and the dispute is only over who was at fault. | Assuming you have a six-month Assured Shorthold Tenancy, you don't have to give any notice at all. As long as you are not in occupation after the end of the tenancy (which means moving out before it ends), that's it. For example, this page from Shelter says: The general rule is that the tenant can leave on the last day of a fixed-term tenancy without giving notice, and this will end the tenancy.[2] If the tenant remains even a day longer than the last day of a fixed-term tenancy, a statutory periodic assured shorthold tenancy will arise, which the tenant can end by serving a valid notice to quit. [2] Right d. Flower v. Darby (1786) 1 T.R. 159; Cobb v Stokes (1807) 8 East 358. This is extremely bad news for landlords, who don't (necessarily) get any notice that they have a void. In general, I would say you ought to give a month's notice (full disclosure, I am a landlord), on the other hand, if they haven't fulfilled their responsibilities perhaps not (but you may have an exaggerated idea of their responsibilities). If you do this, don't expect to get a good reference from your landlord! (Which is going to make it harder to find somewhere else to live). You should also anticipate difficulties in recovering your deposit (you are legally entitled to it back, but that doesn't mean your landlord can't be difficult about it - possibly even requiring you to sue for it). I have just noticed the second part of your question. If you do nothing (in other words, stay in residence), at the end of your Assured Shorthold Tenancy you will switch to a periodic tenancy. The landlord can't force you to switch to another six-month contract, but on the other hand, if you don't, they are perfectly entitled to give you two months notice. If they are smart, they will give you this notice now, so that you can only stay for two months on the periodic tenancy. Note that the letting agent has an incentive to get you and the landlord to sign another contract (they can charge the landlord a fee for it), so they may not be being entirely honest about whether a periodic tenancy is an option. (On the other hand, a poor landlord may be more interested in locking a tenant in for six months.) | One analysis is in Bow Cycle & Motor Co. Ltd. v. Murray, 2006 ABPC 366, by Judge O'Ferrall (now Justice of the Court of Appeal of Alberta). The defendant sat on a motorcycle, positioned it fully upright, and when he returned the motorcycle to rest on the kickstand, the bike crashed to the floor. There were three potential paths to liabilty argued, none successfully: negligence (for example, if the defendant had repositioned the kickstand at any point—there was no evidence of this) trespass to goods (but this would have required intentional or negligent treatment of the good) contract (which would have required a clear "you break it, you buy it" policy with express statement that the customer would be liable even for non-negligent damage—there wasn't) Context mattered. Liability might be made more strict more easily in a china shop. The judge wrote: in the end, this case must turn on the presence or absence of negligence because, at least in the circumstances of a motorcycle shop, a “break it, you buy it” arrangement would have required an element of fault on the part of the breaker, absent a very clearly communicated term that the customer pays irrespective of negligence. There being no such term and negligence having not been proven, I find the Defendant not liable. In so doing, I considered the china shop analogy. It may be that in a china shop one could infer that the customer pays for broken items irrespective of fault because there is no need to touch the item in order to make the purchase decision. But in order to make an informed purchase of a motorcycle, the purchaser must try it on for size and the fact that he must do so makes it much more difficult to infer a no-fault promise to pay for damage howsoever caused. | This is complicated. This is state dependent, and as of time of writing, you haven't disclosed what is the relevant state. This is something you should hire/retain a (divorce) lawyer, and discuss with them. The law can be messy; divorces are always messy. The answer is the most common answer in law: it depends, on specific facts. See above, get a lawyer. The first question is "is the money in this investment account a shared asset that I have any claim to". The answer is "it depends". What state are you in, and where did this money come from? Depending on various factors, the answer might very well be "no", in which case, this money (and it's loss) may not affect you at all. If you do have some claim to this money, then it gets even more complicated. "Can this asset be retrieved in a court proceeding and say that he was squandering money?" Maybe, kinda. Technically no (because of the way you phrased that). I'll explain. In a divorce, "shared" assets are divided equitably (Note "equitably" does NOT mean "equally") based on numerous factors, often on a case-by-case basis, and which factors depend on the state. (Therefore, the lawyer you retain should be licensed in the state you/your husband are filing for divorce in). Before your divorce, both sides have (in general) the right to use shared property. They do not have the right to intentionally damage or destroy said property. One complication/grey area is normal use that degrades or damages the value of said property. For example, imagine a classic sports car. Many people drive them for fun; this is normal use. On the other hand, using a classic sports car decreases the value. Is using the sports car unreasonable damage? This is a fact based determination to be made based on specifics. Can this asset be retrieved in a court proceeding [if I] say that he was squandering money? (correction to what I think think you meant). Maybe, but probably not. You can say whatever you want in court, but what matters is what you can prove, as you are the bearing the burden of proof due to making the accusation (and you must prove it to the standard required by the court in your case for your particular motion/accusation, which might be the standard of "the balance of probabilities/more likely than not" or "clear and convincing evidence", or something else; it's complicated, fact dependent and state dependent, so get a lawyer). You don't need to prove that he lost money. If he was day trading before, the fact that he was day trading after the separation is not held against him; day trading is risky, therefore you have to prove that he intentionally lost money (and, potentially, that he intentionally lost money to deny money to you in the divorce, as opposed to e.g. tax loss harvesting). I would recommend hiring a divorce lawyer and discussing it with them. | Inform him of what you intend to do and by what by what date. Make sure that you can document that you did give him notice -- so not sure sure if Whatsapp/text would do -- I would use a registered letter, and a letter which is also sent in CC to your solicitor. He can always sue you, but he does not stand to win if you can show that you have given him fair warning. | A new car should be a new car, without any damage. But, if you did sign the contract after you saw the one scratch at night, the dealer may have needed to disclose in writing all of the damage (what you first saw and what you saw the next day) in writing before you signed. From NC Department of Justice - Disclosing New Car Damage • Dealers are required to disclose in writing any damage and repair that exceeds five percent of the manufacturer’s suggested retail price before you enter into a contract. • Dealers are not required to disclose any damage to glass, tires or bumpers if the damaged item has been replaced with original or comparable equipment. • If a new car has been repaired for damages that do not exceed five percent of the manufacturer’s suggested retail price, then the dealer does not have to tell you about the damage unless you ask. • If a new car has been damaged more than the five percent threshold, the North Carolina Automobile Dealer’s Association recommends that its dealers disclose it in writing on company letterhead. A copy of this disclosure should be submitted along with the title to the Division of Motor Vehicles. So if you are now in possession of the car, tell the dealer you have checked with the NC DOJ and ask the dealer about the total cost of the damages and see what they say. It's a good idea to take photos, and you may want to get a repair estimate from a body shop to calcuate yourself if the damage is over the 5% threshold. If you suspect the car may not be new and may be used, that's serious, and the dealer will have had to fully disclose that in writing. You can talk to the DMV or use the VIN number to check CARFAX. If you have problems with the dealer or suspect the car may not be new, you can contact the DOJ at the URL above or call them at 1-877-5-NO-SCAM. | Under the Berne Convention, a copyright notice is not required at all, although using one is good practice. Using one usually eliminates the claimed status of "innocent infringement", which, if found true by a court, greatly reduces damage awards. It is usual to place such notices at or near the start of a work. That is where people tend to look for them, and I don't see any good reason not to follow this practice. The book tradition is the the copyright page comes before any part of the actual work, including the table of contents, sometimes with a continuation at the end of the work, if there is more than one page of notices. But that is not now a legal requirement, if it ever was. In short, there are no rigid rules on this, but putting a copyright notice at or quite near the start is good practice, and I would suggest sticking to it. |
Can I legally "kick my kids out the door as soon as they are 18 years old"? The threat my dad always used on me was, "get a job, or get out as soon as you're 18". I'm a dad now. I have one "child" who is 37 years old who doesn't work, and who I'd like to kick out, and another who's going to turn 18 in a few months. I don't want to repeat the mistake of my first, on my second. So, as the bill payer, the meal provider, the transportation, and so on, I appeal to you: is it as easy as "kicking them out the door" on the day they turn 18 years old? | Generally, you would have to bring an eviction action just as you would for an ordinary landlord-tenant relationship. This means given written notice served as required by MA law of a deadline to leave, and then if the child did not leave, filing an eviction lawsuit and serving the papers on the child, and then attending an eviction hearing, and then, if you prevailed in that hearing as you probably would (probably with horrible TV and newspaper publicity that might go viral in social media), and then, arrangements would be made to remove him and his stuff from the house on an appointed day with law enforcement and movers and you would change the locks. It would probably take a few weeks start to finish. It is not something that a non-lawyer should try to do themselves. A lawyer would probably charge you a few thousand dollars for this proceeding. The main exception would be that generally a parent has a duty to support an adult disabled child who cannot provide for himself. You probably do not have the legal right to simply kick out your child without an eviction action, although few adult children would choose to push their legal rights not to be removed in that manner if they were. The fact that a child would likely end up homeless in some circumstances if you did this is something that most parents would not be at peace with and would regret later even if they felt good about the decision at the time, but that is a parenting decision and not a legal one. | In general, no, if you make a will then you can revoke that will while ever you are still legally competent. Also, in general, this is a good thing. For your first example, you are ruling out all possibility of redemption - people change: a person who is a selfish a*$%^#@e in their 20s may be a kind, caring, dutiful and loving person in their 40s. For your second example, what if XXX gets demolished? Or you move cities? If you are truly serious, you can transfer all your assets to a trust, put your instructions in the trust deed and then nominate someone you really, really, really trust to be the trustee. This would prevent you modifying the instructions but you are then relying on the trustee interpreting them. | There appears to be no "oppressive child labor" occurring and therefore no breach of labor laws. The definition of oppressive child labor expressly excludes employment by "a parent or a person standing in place of a parent" except in identified hazardous occupations; gardening not being one of those. Notwithstanding, schooling in California is compulsory between the ages of 6 and 18 subject to a number of exemptions which the person concerned may or may not have. If you are concerned about this you should contact the Department of Education. | Usually and ideally, a GAL would take an active role in parenting questions, while taking a secondary role in property division and maintenance with the primary concern being that the economic arrangements are sustainable and don't subject the child to hardship when with the other parent (e.g. many divorcing parents fail to realize that maintaining two households will result in more child related expenses than one). I will assume that you are asking from the perspective of a party to the divorce and not from the perspective of a mediator, although the phrasing is not entirely clear. Some basics: Have a good command of the facts about your finances, your ex's finances, and the children's schedules and needs (assuming that there are children). For example, it would be good to have school calendars as far forward as they are available, to know the children's medical providers, and to have a firm command of their extracurricular activities, their friends and the requirements of any childcare providers. Often child support worksheets will be mandatory for a settlement to be approved, so get those worksheets and fill in the facts you know already. Bring a calculator so you can consider new assumptions and evaluate financial proposals accurately. If you think you have received inaccurate disclosures, be prepared to explain in detail what you think is inaccurate and why you think that this is the case. If domestic violence has been an issue, there are restraining orders that are or have been in place, there are abuse or neglect allegations present (including emotional abuse of a spouse or children), or the co-parents have had trouble coordinating and reaching decisions without outside assistance, be prepared to explain these situations in factual detail so you can avoid summarizing the situation in a vague way. Bring anything you might need to refresh your recollection about relevant facts with you to mediation. If you haven't received full disclosure of your spouse's finances, insist on receiving that, ideally before going to mediation and absolutely before reaching a deal. Spend time considering possible resolutions of property, maintenance and parenting matters in advance. Very early on in mediation each of you will be asked what you want and mediation shouldn't be the first time that you have thoughtfully considered the question. Spend time thinking about what you need on a non-negotiable basis to survive - to be able to meet basic needs for food, shelter, clothing, health care, etc. for you and your children, and also about what your ex needs and how your ex can achieve it. Proposing ways to achieve objectives that your ex hasn't considered that are viable is a good way to get a resolution. Ideally, attend a parenting class (mandatory in many jurisdictions before getting a divorce that involves children) before attending mediation. Keep in mind that children are not prizes or bargaining chips and that you need to consider their needs as well as your own. Your kids love both of you even though you can no longer manage to live with each other. Do not utilize the children as sounding boards for mediation stances and do not try to use them as decision makers or conduits for communication between the co-parents. Recognize that in most states, marital fault is irrelevant, and that starting a new relationship is natural and routine, even if it makes your skin crawl that your ex is starting a new relationship. Take an attitude of focusing on what the deal does for you rather than what the deal does for your ex. This is about you getting what you need, not about making your ex worse off. Be prepared to walk away from mediation without a deal if necessary, because your ex won't accept a reasonable deal. Maybe half of mediations end without a settlement. Recognize that it may be possible to reach partial resolution (e.g. splitting up tangible personal property; figuring out how holidays will be handled with the children; agreeing on schools that children will attend; figuring out who, if anyone, will continue to live in a marital residence; stipulating to the value of particular assets; stipulating regarding each party's income; stipulating regarding what is and isn't separate property where you can agree; agreements to disclose information), without resolving all issues. Partial resolutions reduce uncertainty and make it easier to prepare for and conduct a permanent orders hearing on the remaining issues. Even if you can't afford to hire a lawyer to represent you in the entire case, pay for an hour or two of a lawyer's time to evaluate what kind of property division, maintenance award and parenting arrangements are within the range of the possible and likely if you go forward to a permanent orders hearing. Be prepared to put the terms of anything that is agreed to at mediation in writing. Mediators will usually tell you if they need forms signed, payments made, or a "mediation statement" in advance. Do everything required on time. A "mediation statement" is a summary of the key facts and your position on a fair resolution and could be a couple to a dozen pages depending upon the complexity of the case. Be clear in a mediation statement about what is O.K. to share with the other side and what is for the mediator's information only. When a mediator asks for a mediation statement the main reason for doing so is to save time that the mediator is charging you per hour for 50-50. A mediation statement can make getting the mediator up to speed on the facts more efficient and less likely to omit important facts and the mediator needs to learn the key facts to be effective. | To begin, it is always legal to request the signing of a contractual arrangement in this type of circumstance; however, it is not your duty to assent to this so long as the original tenant had the right to sublet or take on roommates. Without having signed the new lease, you (all the new tenants not on the lease) would just be tenants-at-will. This occurs when an occupant has rented a premises without a lease but pays rent at a set interval (typically monthly). The agreement for a Tenancy-at-Will may be either written or verbal. Just because a rental agreement is in writing does not make it a lease. Either the landlord or tenant may terminate this arrangement by giving written notice 30 days or one full rental period in advance, whichever is longer. In a situation where you rented from a renter, I would want to have the assent of the landlord, as no reason is required to terminate by either party. This should be done in writing either by certified mail or have the landlord sign it, if you are presenting it in person. If rent is paid the first of each month, notice should be given prior to the first day of the month. Many landlords are fond of tenancies-at-will because they maintain the ability to terminate a rental at any time with only a month's notice, without needing a reason. This is their prerogative for even petty reasons (e.g., they don't like your friends, or the hours you keep). This is especially true with a roommate situation, where the original lessee has a lease and is subletting rooms, because the lessor has someone on the hook for a time certain (the original lessee), but if the roommates get annoying for whatever reason to either the landlord or the lessee, you can be given a 30 day notice for a great many reasons that a lease cannot control and are not viable reasons to evict. A lease is for a duration certain, after which, the renter would either move, sign another lease, or in the case where they stayed on past the end date and continued to pay (and landlord continued to accept) rent, it would just become a tenancy-at-will. In many ways a lease protects the renter just as much as it does the landlord, because moving is expensive and (except in very limited circumstances) the renter is guaranteed being able to keep the rental until the lease ends, so long as they pay rent and do not violate the lease or local statute(s), which would subject them to eviction. This would be beneficial in a roommate situation as it takes the power to give notice or evict away from the original lessee who sublet the rooms. It is important to understand that just because there is a writing does not necessarily mean it is a lease. Many landlords who don't want the time constraint of a lease still like to affirm in writing basic issues like date of rent due, pets, etc. It is just cleaner than a verbal agreement. So, in your hypothetical, the landlord could ask the new renters to (co)sign a new lease, join the existing lease, or just sign a rental agreement as a Tenant-at-Will, even though the tenancy has already begun. The renter is not obligated to sign any writing at this point. However, if the renter refuses and if the landlord insists, the landlord would likely exercise their right to terminate by serving a 30 day notice to quit. Having already taken possession, you would also be in a good position to negotiate the terms, which could be to your benefit, so it is not necessarily a bad thing. Regarding eviction, that would only be an option to the landlord if you failed to vacate if a 30 day notice to quit was issued and you didn't move (or of course, as with any renter, if actions that would always allow the landlord the right to seek eviction occur, like failure to pay rent). I would not be concerned about showing you have a right to be there as you likely had to pay rent to move in and your check is proof that the tenancy began, and other things like having a key, etc., support your position if it ever came to that and you had paid cash. If you do ever pay cash, get a receipt. If, hypothetically, the new renters sign a lease, I would want to make sure it is for the room and not the whole so that liability (at least for rent) is limited if others default. | What "reasonable accommodation" were you requesting? That they lower the bar of determining your ability to pay your bills on time? I don't think that will qualify. A business setting a minimum bar for financial viability isn't a burden tied to a handicap. It's one thing to request a ramp, contracts in braille, etc., but it's another thing to request that they accept a highly-probable financial risk. What would you expect of them the next time "life" got in the way and you couldn't pay your rent? Another accommodation? I think what they were saying is that since you didn't pass the financial background check, and as such were not accepted as a resident, you aren't in a position to make an accommodation request. | Parents have a legal obligation to care for their minor children: it is illegal to harm a child through action or inaction. State law and associated welfare programs are complex: you can start here. If surgery is medically necessary, her insurance should cover it. If her parent do not have medical insurance, they still have the obligation of care; though various governmental programs may alleviate the problem, such as the state medical assistance program. The parents may therefore be in violation of the law, and anyone may report this to DSHS (specifically through Child Protective Services). This obligation terminates when the child turns 18 (assuming that someone does not petition for adult guardianship). Legislation is not crystal clear as far as what constitutes "injury of a child ...under circumstances which cause harm to the child's health". CPS has no authority to compel parents to pay for a medical treatment, but they can go to the courts on behalf of the child. At that point, it's hard to say what the court would order. For example, if the parents are capable of providing medical insurance and just willfully chose to not cover their child, the court could order them to get insurance. It is virtually guaranteed that the courts would not order the immediate amputation of the child's feet, and there would be no legal basis for ordering the parents to pay for the procedure in a decade, after the child is an adult. However, if you are suggesting that there is an immediate treatment (which the parents have opted to not provide, hence the prospects of later amputation), then it is reasonably likely that the courts would order the parents to provide for the treatment (if it would be possible for them; otherwise, the state may intervene and provide for the treatment). | FERPA protects the privacy of students' records, irrespective of their age or grade level. Age is generally only relevant in determining who can assert those privacy rights. When you enter school at age 5 or whatever, your parents make your privacy decisions for you. When you turn 18, you become an "eligible student," i.e., eligible to assert or waive your privacy rights without parental oversight. |
Does federal law require people criminally prosecuted to be in federal jail? A few months ago, Attorney General Jeff Sessions implemented a "zero tolerance policy", requiring the Department of Justice to criminally prosecute every single person caught crossing the border illegally. This has resulted in large numbers of children being separated from their parents. So today President Trump passed an executive order intended to end the family separation issue. Here is what it says: The Secretary of Homeland Security (Secretary), shall, to the extent permitted by law and subject to the availability of appropriations, maintain custody of alien families during the pendency of any criminal improper entry or immigration proceedings involving their members. Now some have argued that this executive order will be overturned because extended detention of children violates the Flores settlement, and the courts may not be willing to modify the Flores settlement. But I'm interested in a different issue. Under the executive order, parents being criminally prosecuted for crossing the border illegally would be held in detention centers by the Department of Homeland Security as they await trial. My question is, is this permitted under federal law? Or does federal law require that those being criminally prosecuted at the federal level (at least for illegal entry) be held in the custody of U.S. Marshals in federal jail as they await trial? Here is what this article says: To be clear, there is no official Trump policy stating that every family entering the US without papers has to be separated. What there is is a policy that all adults caught crossing into the US illegally are supposed to be criminally prosecuted — and when that happens to a parent, separation is inevitable. Typically, people apprehended crossing into the US are held in immigration detention and sent before an immigration judge to see if they will be deported as unauthorized immigrants. But migrants who’ve been referred for criminal prosecution get sent to a federal jail and brought before a federal judge a few weeks later to see if they’ll get prison time. That’s where the separation happens — because you can’t be kept with your children in federal jail. But when the article talks about those referred for criminal prosecution being sent to federal jail, is it just talking about standard practice, or is it talking about what federal law requires? | If someone is arrested by federal agents and referred for indictment, they have to be processed by the federal justice department. Processing includes things like being fingerprinted and going before a judge to get bail set or denied. Federal protocols demand that the prisoner goes through this process without family members. Once the prisoner is processed, there is no detainment requirement. The prosecutor can request detainment, but prisoners could be released on their own recognizance, on payment of bail, or to another organization. For obvious reasons (flight risk), border crossers are generally released to Homeland Security rather than on their own recognizance or with bail. According to the LA Times: Rio Grande Valley border agents have prosecuted 568 adults and separated 1,174 children since zero tolerance began, Padilla said. Of those, 463 were reunited with parents “in a matter of hours” after they returned from court. It wasn’t clear how long the rest were separated. That was as of June 17th of 2018. There isn't a breakdown of why some families were separated longer. TL;DR: No, it is not a requirement that prisoners be kept by the Marshals. It is a requirement that they be processed separately from people not being prosecuted (e.g. their children) and members of the opposite sex (e.g. most spouses). After processing they can return to detainment. | It’s complicated. Most crimes in DC that would be state crimes elsewhere are punished under the DC Code, which was at one point written by Congress but which the DC Council now has the power to amend (subject to Congress’s right to change it at any time). Crimes under the DC Code are tried in the DC Superior Court, which is generally considered a local court. Its judges are appointed by the President (subject to Senate confirmation) for 15-year terms, but the President must pick from a list made by a commission with both federal and local membership. Appeals from Superior Court go to the DC Court of Appeals, which is not the same as the US Court of Appeals for the DC Circuit. From the DC Court of Appeals, appeals go to SCOTUS just like appeals from state supreme courts. Prosecution can be done by the city Attorney General (normally handles misdemeanors) or the federal US Attorney for the DC District (normally handles felonies). Jails are handled by a city department, prison terms are handled by the federal BOP. DC is in the special territorial jurisdiction of the United States, so many generic federal crimes apply there. However, in practice they are not charged in US District Court as violations of the US Code but in DC Superior Court as violations of the DC Code. For double jeopardy and many other constitutional purposes, the DC Code has to comply with restrictions on federal power. This is part of the reason Heller was brought in DC: gun rights groups wanted to set a precedent under the 2nd Amendment before they had to argue that it applied to the states under the 14th. | In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source. | You have a couple major misconceptions about US law. First, crimes against the person are generally punished at the state level. States are not restricted to any sort of enumerated powers, and can pass any law they want to promote the general welfare unless there's a reason they can't. This is called the "general police power," and it lets them make everything from contract law to laws against murder. The federal government has to justify what gives it the authority to pass a law, and cities and counties have to justify their authority with state law or a state constitution, but a state government never has to preemptively justify why they have the authority to pass a law. States are especially not limited to powers listed in the federal constitution. The US Constitution sets up the federal government. State governments are set up by state constitutions, and derive their authority directly from the consent of the people of the state exercising their right to democratic self-determination. The only powers the US Constitution gives to states are minor technical powers involving state-federal relations (e.g. deciding how their presidential electors are appointed). But as I said, they aren't generally limited to any sort of enumerated powers by their state constitution either. Even the federal government isn't limited to "protecting rights listed in amendments." That's very little of what it does, in fact. Congress has powers listed (for the most part) in Article I and Article IV. It can pass laws banning murder in DC because Article I lets it exercise exclusive jurisdiction (meaning general police power) over DC and over federal enclaves. Article IV lets it exercise general police power over US territories, and pass laws regarding other federal property (I think it has a general police power there too, at least according to current law). The Necessary and Proper clause gives Congress the power to protect its own operations by, for instance, criminalizing the murder of a federal judge. Etc. Where there isn't a clear thing that lets the feds regulate something, they can probably get away with cramming "in or affecting interstate or foreign commerce" in the law, secure in the knowledge that practically everything affects interstate commerce. I'm not sure where you got the idea that laws are passed exclusively to enforce rights protected by the Constitution. They are not. They are not passed primarily for that purpose. Such laws do exist (e.g. deprivation of rights under color of law, which was passed pursuant to the 14th Amendment), but they're protecting you from government infringement of that right. | Revised for clarity in light of comments State and local police can arrest anyone who they have probable cause to believe is breaking state or local law. Like all LEOs, Federal LEOs can break some state and local laws while enforcing Federal law. When they grab someone off the street and hold them in a cell, they are detaining them, not kidnapping them, and so on. However, to avoid arrest, the Feds have to identify themselves. That's because state and local LEO who know they are dealing with Feds on federal business no longer have probable cause to believe a crime is being committed. State and local police can arrest Federal LEOs who they: a) have probable cause to believe are breaking state or local; and, b) have no reason to believe are Feds enforcing Federal law. In other words: Any Fed who refuses to identify herself to a local LEO can be arrested if there is probable cause. State and local police cannot, however, arrest Federal LEOs just because they are not wearing insignias. That is because: a) there are no federal statutes requiring federal LEOs to identify themselves; b) the Supremacy Clause says federal law takes precedence over state and local law that conflict with it; c) at least in Portland, the feds were not operating under any sort of formal agreement with Portland or Oregon officials that required them to have identification. While it is hard to prove a negative, the question of whether Federal LEOs are required to identify themselves has been looked at recently by reputable sources. They all agree there is no such law. For example, the answer from Lawfare: Broadly speaking, law enforcement officers do not have a legal duty to disclose either their identities or their agencies of affiliation, even if asked directly. Certain municipalities require police officers to identify themselves if asked, but there is currently no federal statute requiring officer disclosure of such information. The article points out that the two main types of cases involving police identifying themselves really don't apply: police who are working undercover, notably in sting operations, and police searching and seizing property. They go on to point out: Separate from the question of federal law, several states have adopted laws and regulations requiring law enforcement to identify themselves. For example, under New York City’s Right to Know Act, a broad set of police reforms that went into effect in October 2018, officers must tell civilians at the start of some interactions “their name, rank, command, and shield number.” (Also, many departments have policies that generally require officers to identify themselves, although with exceptions. You can see examples of the policies here.) Again, these local laws do not apply to Feds because of the Supremacy Clause. NOTE: As several of the news stories note, the lack of identification will make it very hard to hold Federal LEOs accountable for their actions. Accountability requires identity. | You can be prosecuted for the crime in the U.S., both at the federal level and at the U.S. state level (or both), completely without regard to what happened in the criminal justice process elsewhere. This is true in all of the scenarios you pose, for any offense, and with or without an extradition treaty (of course, unless the treaty had some anomalous provision to the contrary or deprived the U.S. of jurisdiction by statute rather than constitutionally of this crime). The U.S. Supreme Court determined in Heath v. Alabama, 474 U.S. 82 (1985) that the double jeopardy clause of the U.S. Constitution is applied separately with regard to each sovereign involved and that each state and the federal government count as separate sovereigns. In the pertinent part, it states: The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the "peace and dignity" of two sovereigns by breaking the laws of each, he has committed two distinct "offences." United States v. Lanza, 260 U. S. 377, 260 U. S. 382 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 55 U. S. 19 (1852), "[a]n offence, in its legal signification, means the transgression of a law." Consequently, when the same act transgresses the laws of two sovereigns, "it cannot be truly averred that the offender has been twice punished for the same offence, but only that by one act he has committed two offences, for each of which he is justly punishable." Id. at 55 U. S. 20. In practice, the U.S. Justice Department and most state and local prosecutors are disinclined to prosecute a crime that has already been handled by another jurisdiction and often have official, but non-binding, policies to that effect. In part, this is because an acquittal in one jurisdiction makes it likely that it is a weak case, while a conviction in one jurisdiction often constitutes sufficient punishment. There could be an issue under the 8th Amendment to the U.S. Constitution (cruel and unusual punishment) over whether a punishment imposed in a U.S. conviction for a crime needs to consider the already severe punishment imposed in another jurisdiction for the same crime in order to prevent the cumulative punishment from being cruel and unusual. But, I am not aware of authoritative case law that resolves that constitutional question. Certainly, evidence of a prior punishment for the same offense could be presented at a sentencing hearing following a conviction in mitigation of the punishment that should be imposed. Indeed, in some states time served pursuant to a conviction for the same crime in another jurisdiction might statutorily count as "time served" for which the defendant is legally entitled to credit at sentencing. | The government has the choice They can prosecute the child for a crime in the adult system and the defendant then has the right to a jury, or they can refer the matter to the juvenile justice system (JJS) in which case any sentence is administrative and rehabilitative, not criminal and punitive. Some jurisdictions have removed certain classes of crime from the JJS and others allow the prosecutor or the JJS judge to refer the matter to the adult system. You may argue that this is a distinction without a difference, however, SCOTUS did not agree in McKeiver v. Pennsylvania (1971). The fifth amendment says "No person shall ... be deprived of life, liberty, or property, without due process of law" and SCOTUS was satisfied that the JJS provided that. They were also satisfied that because the prosecution was not criminal, the sixth amendment's right to a jury trial was not engaged. The JJS was established around the turn of the 20th century out of a belief that juveniles were more amenable to rehabilitation and that juvenile crime was a product of lack of parental supervision and societal influences whereas adults made a conscious choice to be criminals. In theory, the idea was to create a more sympathetic and less adversarial system to allow orders that were aimed to promote rehabilitation rather than punishment. Its success in that regard has been, at best, mixed. With the rise in crime in the US (but also worldwide) from the 1970s to 1990s, it became more politically beneficial to be "tough on crime" and more children were diverted from the JJS to the adult system - especially if they were people of colour. Even though crime rates have crashed since the turn of the 21st century, this is still many politicians' go-to response. | There is no absolute rule in such cases. It is often a matter of negotiation between the state and federal authorities, and failing agreement, a matter of which authority has the prisoner in custody. Often the question of which crime is more serious or carries a longer sentence is an issue in such negotiations. |
Patent Application Due-Diligence When engaging an IP attorney, I would like to understand what the inventor can / should prepare before meeting with the attorney. Assume the context is a system and method utility patent application (USPTO) and that a provisional patent application has been filed. I can imagine a list of items an attorney would need. Is there a name for such a list? (so that it could be Googled) What items would be on the list? | Many attorneys would have an "intake form" that they would like you to complete in advance, and every lawyer will want your name and contact information at a first meeting. But, other attorneys would prefer to meet with you first, without getting details about the work to be done, as many patent applicants are very reluctant to put information in writing that is shared with others and many patent applicants don't know what is relevant. There is no special terminology for the things that you should prepare for prior to meeting with an attorney. And, anyone who completed a provisional patent application is not so half-baked in their idea that it is premature to meet with a patent lawyer. Having done a provisional patent application is more than enough due diligence and preparation for such a meeting. The marginal cases where preparation by clients is often lacking are those cases where the concept of the invention isn't fully fleshed out yet and the inventor is trying to work with a patent lawyer to figure out what part of "idea space" isn't already protected by patents. There are basically three kinds of information that are relevant: When was the invention invented, made public, or shared with anyone? Is there anyone else who could be considered a co-inventor? For example, if you have an employment agreement discussing intellectual property, you should bring it. You would need your full provisional patent application, which will explain most of the necessary information but may need to be clarified for a final application. If visual aids are helpful to explaining your invention or you have prototypes small enough to bring with you, you should bring them, even if they are beyond the scope of the provisional patent application's contents. You ideally should do some due diligence regarding "prior art" to provide some assurance that the idea you propose hasn't already been patented or discovered, but not every patent applicant has the ability to do such a prior art search. At a minimum, you should be able to say in good faith that you've never seen a similar invention and explain why you think personally that your invention is novel. Generally, you should not order a professional patent search before you have discussed it with your patent attorney. But, if you are able to do so and have reviewed existing patents, reviewed literature you are able to access, and have done some Google searches for similar ideas, that would be more than reasonable preparation. But, don't delay meeting with a patent lawyer because you haven't done those things. A patent lawyer needs lead time to prepare the application by the deadline for doing so (ideally, several months, and at a minimum, several weeks to a couple of months). In addition, you should be prepared to discuss why your invention is not obvious to someone skilled in the relevant field and what utility your patent has to a user of the invention. Similarly, you should be ready to discuss the larger context of the field in which you have an invention, such as how others usually deal with the issue that your invention addresses in the status quo and what other notable new inventions there are in that field. "Buzz words" related to your kind of invention are also very helpful for doing searches of prior art. Finally, you should be prepared to demonstrate that you have the capacity to pay for the patent lawyer's work. Patent lawyers almost never do pro bono (i.e. charitable) patent work for individual inventors (sometimes they might, for example, for a university clinic aimed at inventing things for use in the Third World), and are loathe to do work on a contingent or on credit basis, although sometimes they would be willing to work on credit if you could provide security for the debt beyond the patent itself (e.g. putting the equity in your home up as collateral). A patent lawyer would almost always charge more than $10,000 to do the work beyond an initial consultation (which wouldn't be free but might cost $100-$1000), and often a patent could cost $100,000 for each patent for legal work, if it was at all complex. Patent lawyer have among the highest hourly rates of all kinds of attorneys. So, the more clearly thought out you are, the better organized your paperwork is, and the more efficiently you can communicate your invention, the less you will pay for meeting with the patent lawyer while "the meter is running." Even in the unlikely case that the patent lawyer will do the work on credit, the patent lawyer will at a minimum insist that you provide the filing fees up front. If you are truly broke, you need a business partner to finance the patenting process for you. You can look at the relevant fee schedules at the patent and trademark office website. The patent lawyer would also expect any out of pocket costs for things like a professional prior art search, having quality drawings prepared, courier fees, and mailing costs to be paid in advance, even if doing some of the legal work on credit. The prior art search is the most expensive item and it would usually cost in the low single digit thousands of dollars. | Neither law has precedence - manufacturers have to obey both. The FD&C says that they don't need to list ingredients which are trade secrets; the CFR says they must. If they list the trade secrets they do not break either law. If they don't, they break the CFR. Conclusion: they must list the trade secret ingredients. If the FD&C said it was forbidden to list trade secret ingredients, but the CFR required it, manufacturers would still have to obey both laws - which would mean they couldn't sell anything where one of the ingredients was a trade secret. | When they start giving legal advice ... unless your PA is a lawyer. In a nutshell, legal advice has the following characteristics: Requires legal knowledge, skill, education and judgment Applies specific law to a particular set of circumstances Affects someone's legal rights or responsibilities Creates rights and responsibilities in the advice-giver Unlike legal information - such as information posted on a street sign - legal advice proposes a specific course of action a client should take. For instance, it's the difference between telling someone what to do (legal advice) as opposed to how to do it (legal information). For your specific questions Can they research the CC&Rs, Bylaws or other such states, federal statues to help me better understand the letter? Researching and even summarising is not legal advice. If they give opinions on what you should do as a result of that research it is legal advice. Can they write up a response letter that I would look at and approve ... Yes ... or if minor enough they could just respond? It depends on what's involved. If it is a purely factual response ("Is this your car?") then this is ok. If it is legal advocacy, it isn't. Putting aside the legalities; how does your PA feel about you suing them if they stuff any of this up? If I was your PA, I wouldn't be acting as your agent without an indemnity. | This is not legal advice, It is not even primarily a legal opinion. It is a legal position. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure. Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage. Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid. Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question. | How are such no-show-no-tell boundaries established They largely stem from the rules of evidence which are complicated, vary from state to state and knowing which is a big part of what litigation attorneys are paid for. Parties to litigation become aware of all the evidence/topics that their counterparts wish to broach in the courtroom well in advance — during discovery. They will usually disagree whether some bits and pieces can be presented to the jury. In this case the court will hold admissibility hearings — again, well in advance before the trial. Despite all the preparations, some of these disagreements arise during the trial, and then they are resolved in place by way of voiced objections. The attorneys and the judge talk about them using professional jargon of the rules of evidence — having themselves seen all the evidence in advance. does the jury get to know them No, the jury doesn't need to follow the professional talk. In fact, they should hear as little as possible of it — which is the reason why admissibility disagreements are resolved in advance as much as possible. If serious issues arise during the trial, the judge will ask the attorneys to speak to them in chambers — away from the jury. Or they will ask the jury to take a break while the professionals talk. The jury just needs to listen to the evidence that is allowed in, and disregard any evidence the judge say they have to. is this also in the public record somehow? It is in the court record. It may be accessible to the public if the court allows. If someone wishes to see the record they need to apply to the court, provide reasons and a judge will decide if anything can be released. | A motion to dismiss sets no precedent Whether it succeeds or not, it does not result in a judgement on the merits, it is simply an analysis on whether the case as pleaded shows the defendant has a case to answer. The case would have to go to trial, have a judgement issued (i.e. not settle), and await the result of final appeals (if any) before it would be considered precedent. As to your final question Is it considered intellectual property theft to capitalize on synthetic datasets produced by OpenAI's LLMs? No one knows. Hence the lawsuit. | Yes, in a sense. One patent is US 7444589 Automated patent office documentation by AT&T. Another is US 6434580B1 System, method, and recording medium for drafting and preparing patent specifications from NEC. In most locations patents on a business method are not allowed but, although controversial, they are allowed in the U.S. Of course the fundamental requirement for patentablity is to be new. Since patenting itself is very old any patent on the topic would need to cover some narrow aspect, like the AT&T and NEC patents. I do not understand the assumption that such a patent would necessarily be licensed freely. | In the most likely case No, but you can make it happen! First - almost every patent is rejected - at first. Then you respond to the office action rejection by arguing and/or amending and - guess what - you are likely to get a final rejection. That means the rejection is final until you pay them more money to file a Request for Continued Examination and get two more go-arounds with them. Can you keep doing this? Yes. A previous director of the USPTO tried to make a rule that limited the number of RCEs - the courts knocked it down. If you give up and let it go abandoned by not responding to an office action within the statutory limit (6 months) then the process of that application is over. If you have not filed a co-pending application before the initial application went abandoned then you are really starting over if you file a new application. The original application can be used against any new application on a similar subject matter if it has been published. But it might not have published. The law (35 USC 102) contains - (a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless— (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention; or (2) the claimed invention was described in a patent issued under section 151 , or in an application for >patent published or deemed published under section 122(b) , in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention. Your application may or may not have been published. Then it is neither published or issued and does not fall under prior art under 102 or 103. Applications are automatically published by the USPTO at the 18 month point unless you requested non-publication. In that case if your application never issues it is never public and can't be used against you or anyone else as prior art. You could even decide to keep it a trade secret. Before the publication process came into being as part of TRIPS, an applicant could wait until they saw the claims that had been allowed and the patent was ready to go. If they didn't feel the claims were valuable enough they can chose to explicitly abandon and keep it secret. |
UAE now banning Virtual Private Network (VPN) access. Are business travelers exempt? According to a few news articles, the UAE is passing a new law with heavy penalties for using a Virtual Private Network (VPN). Another report says: Travelers also come under this law and if caught using any VPNs could face fines as well as jail time. The text of the law will be: Whoever uses a fraudulent computer network protocol address (IP address) by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery, shall be punished by temporary imprisonment and a fine of no less than Dh500,000 [£100,000] and not exceeding Dh2,000,000 [£400,000], or either of these two penalties. Allegedly it's to protect local companies, but also obviously helps penalise those circumventing blocks of say, Whatsapp. However, many people legitimately need to connect to their company VPNs for work. If you're in the UAE for business reasons, are there ways to get an exemption from this law? | This article is from an official Emirates news agency, which confirms the change (Federal Law 12/2016). This is a change to Federal Law 5/2012, replacing Article 9 (the translation into English is odd because the verb phrase goes first). The level of the penalty has increased (minimum 150K → minimum 500K; maximum 500K → 2M). Incarceration is changed from "imprisonment" to "temporary imprisonment", which might mean that previously the term was life. In either case, they have an "and" problem that the punishment is "(temporary) imprisonment and a fine ... or either of these two penalties". Presumably the Arabic version is dispositive. Apart from that, the new version of the law identifies the offender as Whoever uses a fraudulent computer network protocol address (IP address) by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery whereas the old law only said whoever uses a fraudulent computer network protocol address by using a false address or a third-party address by any other means for the purpose of committing a crime or preventing its discovery. Thus the meaning of "computer network protocol address" is defined as being equivalent to "IP address". In other words, there is no substantive change beyond the stiffer penalty. There does not seem to any provision allowing one to ask for exceptions. Article 30 of the underlying law strongly suggests that there is no exception and you should not ask. On a separate note, only Etisalat and Du are authorized to provide telecommunications services, pursuant to Federal Decree Law No. 3/2003. This article from August 24, 2015 also links to a number of related articles indicating that everything is illegal. | Yes, it's illegal. 18 USC 1030 (a) (5) (A) [Whoever] knowingly causes the transmission of a program, information, code, or command, and as a result of such conduct, intentionally causes damage without authorization, to a protected computer [shall be punished as provided in subsection (c) of this section]. "Damage" is defined at (e)(8) to mean "any impairment to the integrity or availability of data, a program, a system, or information". Your proposed attack would certainly cause impairment to the availability of the Stack Exchange system and the data and information which it hosts. Whatever else you may think about the Stack Exchange terms of service, they certainly do not authorize any user or moderator to "destroy the site" in any sense such as you describe. It's not necessary for the TOS to explicitly say "you may not do X"; it's enough that they don't say that you may do it. To use a firewall analogy, it's "default deny". "Protected computer" is defined in (e)(2) to mean, essentially, any computer that is used in or affects interstate commerce. Which means practically every computer that has ever accessed the Internet, and certainly includes Stack Exchange servers. So your proposed attack would include all the elements of a violation of this section. Such a violation is punishable by up to five years' imprisonment if it causes a loss of more than $5000 (see (4)(A)(i)(I)), which if such an attack were successful, it certainly would. Greater penalties are possible in certain circumstances. Even if the loss does not exceed $5000, or if the attack is merely attempted but without success, it is still punishable by one year imprisonment or a fine ((4)(G)(i)). There is nothing in the terms of service saying you will go to federal jail for destroying stack exchange. Irrelevant. It is not up to Stack Exchange Inc. or its TOS to determine who does or doesn't go to federal prison. Rather, it is up to Congress to determine what conduct deserves such punishment (as they did in 1984 by enacting this law), up to federal law enforcement and prosecutors to investigate and make a case against an alleged violator, and up to the federal courts to determine if the accused is guilty and how they should be punished. | Are my assumptions correct? Yes, this is precisely the sort of thing that would fall under the purview of "the purposes of the legitimate interests pursued by the controller or by a third party", as it fundamentally enables you to deliver the service to the data subject, and its also difficult to argue that "such interests are overridden by the interests or fundamental rights and freedoms of the data subject" given its a fundamental part of delivering the service before any consent can be given. Its not the intention of the GDPR to solely require a direct relationship between the data controller and data subject, its intention is to allow the data subject to control more of the relationship than they did previously - in some cases, that control remains with the data controller, which is why not all of the lawful basis for processing rest on consent. So long as you ensure that the CDN provider has a relevant privacy policy and is identified as a data processor in your privacy and data policy then you are good to go. In my mind, this is similar to the issue of how the data subjects packets get to you from their computer - we aren't including all of the network providers who carry the packets between the data subject and the processor (despite the fact that those providers will have access to much of the same information as the CDN, such as IP address, source, destination etc), even though in many cases we don't know that information (for example which route it will take over the internet). The only difference here is that as the data controller, you know about the CDN and can include it in your policies, so you should. | The law in every country where your service is available prevails. That means that if your servers are in Estonia, your file storage is in Lithuania, your company is in Switzerland, you are in France, you hold Thai citizenship, your users are in the USA and the signal transits through the U.K., Belgium, Germany, Canada and Poland then you are subject to the laws of each and every one of them. In addition, if China has reason to believe that the stored files contain matters relating to their citizens then they can take an interest. And so on and so forth ... A country has jurisdiction wherever it wants to have jurisdiction subject to the limits of and its ability to actually enforce its laws. What you are proposing is certainly illegal in many countries and you need to seek professional legal advice - not rely on strangers on the internet. | If the Kenya legislature passes such a law, they can impose such a requirement on Kenyans who want to create such social media groups. Note that this is a license from the Kenyan government, not a copyright or trademark license. In effect, it is a tax on running a social media group, along with various regulations. I have no idea if this bill is at all likely to pass. If it does pass, it might be hard to enforce, as it would probably require cooperation from Facebook and other social media platforms, and the companies which run those platforms are not located in Kenya, and might not cooperate. | I know the OP is asking about America, but its also worth knowing about other countries. This is legal if both subscriber and subscription are within the EU. There was also a court case about this. In another case in 2014 the pub lost, but that seems to have been because the decoder was only licensed for domestic use. These cases were for satellite decoders rather than Internet streaming, but the legal issues would be the same. Both these cases involved British pubs, so obviously this law doesn't apply to them since Brexit. | The issue is more likely that there is no law or regulation allowing the use of dogs to sniff passengers in the US for matters not related to crime, whereas Dubai, a monarchy, has a different political system. In general, you have the constitutional right to move about in the U and the right not to be unreasonably seized, a right which may not exist in some other jurisdictions. That right can be restricted in accordance with law, but there has to be some such law. It is not a crime to have covid, or to travel while infected (it is a crime to carry bombs and drugs on a plane). One area where there is some restriction is where there always has been a restriction, namely entry into the US. There is (was) covid screening at certain airports for flights from certain countries. This directive indicates the airport restrictions, but does not explain what screening will take place. The above DHS site says that "the passenger will be asked about their medical history, current condition, and asked for contact information for local health authorities. Passengers will then be given written guidance about COVID-19 and directed to their final destination, and immediately home-quarantine in accordance with CDC best practices". It is not clear whether a mandatory temperature check without even reasonable suspicion of a crime would constitute an unreasonable search (body searches are subject to higher standards than property searches, it seems), and constitutional law surrounding searches has emphasized the primacy of privacy in search law, not the fact of physically entering property of the body. Some airlines and airports offer voluntary temperature checking, so it might be possible if someone has a covid-sniffing dog to offer voluntary sniff testing, especially if it is offered by a private concern and does not have the appearance of government mandate (which would require a law). | Most of the question has nothing to do with the law, it's about technical how-to or how-does, which should be asked in Information Security SE. There are two possible legal questions: is it legal to break into a computer system and take a database of passwords, and it is legal to acquire such a database obtained by someone else. As should be known in the US, per 18 USC 1030, breaking into a computer is illegal in the US. Given that, it is extremely unlikely that Google illegally breaks into other computer systems to obtain passwords. The aforementioned law criminalizes accessing computers without authorization, not (just) "taking" stuff from computers without authorization. The law does not criminalize receipt of illegally obtained material. Passwords are not protected by copyright. If Google were to induce someone to break into a computer system to get passwords, that would be legally actionable, however there is no law penalizing innocent receipt of illegally-obtained passwords (insofar as they are not protected by copyright). It is not illegal to access the dark web, at least in the US (probably it is illegal in Saudi Arabia). Using stuff gotten from the dark web can easily be illegal (e.g. logging in to someone's bank account, or forging a passport). There are many services which monitor the dark web and report breaches, which is totally legal. |
How do Saudi judges decide whether or not a person has become an adult and is eligible for the death penalty? One of the provisions of the Convention on the Rights of the Child is that a person under the age of 18 - or else under the age of majority - can not be executed. Two countries - Saudi Arabia, and Sudan - still have the death penalty for juveniles, or, rather have used it since 2009. Iran appears to have abolished it in 2012. These executions constitute blatantly breaking international law. Here is an excerpt from Wikipedia concerning the Saudi scenario regarding juvenile capital punishment: The Committee on the Rights of the Child, which reviewed Saudi Arabia's treatment of children under the Convention in January 2005, strongly condemned the government for its practice of imposing the death penalty on juveniles, calling it "a serious violation of the fundamental rights". The committee said it was "deeply alarmed" over the discretionary power judges hold to treat juveniles as adults: In its 2004 report the Saudi Arabian government had stated that it "never imposes capital punishment on persons ... below the age of 18". The government delegation later acknowledged that a judge could impose the death penalty whenever he decided that the convicted person had reached his or her majority, regardless of the person's actual age at the time of the crime or at the time of the scheduled execution. The last bit is taken from here. It gives one example of criteria used to determine whether or not a person has reached the age of majority (emphasis mine): In September 2005, Human Rights Watch urged the Saudi government to commute the death sentence of 14-year-old Ahmad D., sentenced to death in July 2005 for killing another child when he was 13. The court in Dammam tried Ahmad as an adult based on its assessment of the coarseness of his voice and the appearance of pubic hair. How do Saudi judges decide whether or not a person has become an adult and is eligible for the death penalty? | The Human Rights Watch published a report on children in Saudi Arabia's justice system("Arbitrary procedures for determining age of majority in criminal cases"): Judicial opinions on when a child can be tried as an adult vary widely, and frequently depend on measures of children’s physical development, contrary to international standards, which call upon states to make determinations of adult competence based on “emotional, mental and intellectual maturity,” and not the child’s physical maturity. For example, Sharia scholar Shaikh Ahmad bin Hamad al-Mazyad, who has served as a senior advisor to the Ministry of Justice for more than 20 years, told Human Rights Watch that judges decide that a person has reached majority (baligh) based on known physical signs of puberty (bulugh, which can also be translated as “majority”), saying that it was acceptable to execute a nine-year-old girl sentenced if she had reached puberty (for further on this see Chapter V, “The Juvenile Death Penalty,” below). He also stated that according to Sharia, age 15 was “the outside limit” for majority (bulugh), so that a child age 15 or older who lacked these signs could still be sentenced and executed if found to have committed murder. ... “some experts in fiqh [Islamic jurisprudence] consider the appearance of signs of [physical] maturity to be the equivalent of having reached the age of majority, while other experts in fiqh go toward 20 as the age of majority, and while there is nothing clear in the text of the law in Saudi Arabia specifying this age, it is moving toward being 18.” On the basis of this report - and the case cited in your question - it seems like physical attributes are the primary issues considered, although age appears to be an issue as well. | As others have said, the reason for this is that the US Constitution grants a jury trial as a right in criminal proceedings. The reason for that right to be granted is to be a check against (that is, a limitation of) the power of the government, generally, and judges, specifically. To answer your specific question of why "the judge system is not reformed and stays like this and is more vulnerable to take a wrong decision because they do not know the law, thus the verdict depends on people’s morals?" Firstly, the jury does know the law (or at least, the specific portions of the law that are relevant to the case), by the time they render their judgement. An important part of the judge's responsibility in a criminal case is to craft "jury instructions" that are given to the jury before they are sequestered for deliberations. These instructions should have an explanation of what questions they need to collectively answer, and what evidence they can and cannot consider. Secondly, there are two central dogmatic difference between the points of view that your question seems to promote or be based on, and the one generally held by the US Founding Fathers, who wrote the US Constitution. Your question seems to assume that: judges are sacrosanct, or at least trustworthy; and rule by law is the foremost concern In contrast, the general view of the US Founding Fathers was that: judges have power, and thus need to be checked (in the US system, a judge's power is checked by the prosecutor, the jury, the chief executive, and by courts of appeal); and protection of the citizenry from the power of the government is the first concern. One thing to note, is that this second point means that the judge in a US trial can actually override a criminal jury, but only in the defendant's favor. | This is controlled by 8 U.S.C. § 1401 which details who qualifies for "birthright citizenship". Including of course the condition mandated by the 14th ammendment, Congress is otherwise free to bestow such citizenship essentially as it pleases by duly enacted legislation. One of the cases that receives birthright citizenship is a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States. So the presumption for young children found in the US is that they are citizens by birth. The law in particular requires positive proof that the individual in question was definitely not born in the United States. Lacking this, or it failing to be found prior to reaching the age of 21 years, they are citizens. For other cases, this will likely end up falling to the courts, who will decide the matter on the preponderance of the evidence. In this case it becomes the burden of the individual claiming citizenship to establish that they are a citizen*. Birth certificates can be filed after birth, and can be submitted as evidence. The laws controlling the validity of birth certificates is locally determined. If there are other birth certificates from other countries, or conflicting witness testimony, then it will fall to the court to decide which case is more likely based on the evidence available. *More accurately the burden generally falls on the entity making the claim about someone's citizenship (their own or someone else's). In a deportation hearing, for example, it falls to the government to establish the individual is not a US citizen. Deporation only applies to aliens, so the defendant must be established as such. | Do these offences exist,... None exist for civilian offences since 1976 and for miltary offences since 1999. All death penalties have been lowered to life imprisonment and for any conviction after that point in time only the lower punishment would apply. Since 1963, all convictions where the death penalty did apply, were commuted to life imprisonment. So there are no cases open where the death penalty would still apply. You cannot be convicted for a crime that no longer exists (repealed). You cannot be sentenced to a punishment that no longer applies (lowered). Nulla poena sine lege (no penalty without law) - Wikipedia After the Confederation period (1867), the number of offences punishable by death were reduced to three: murder, rape, and treason. The last execution took place on the 1962-12-11. After that all death sentences were commuted as a matter of policy. The abolition of the death penalty for murder, treason, and piracy came into force on the 1976-07-26. Other military offences (cowardice, desertion, unlawful surrender, and spying for the enemy), if committed traitorously, still existed until September 1999 (the last one was carried out in 1945). Capital punishment in Canada - Wikipedia The death penalty was de facto abolished in Canada in January 1963 and de jure in September 1999. | New York State's sentencing laws do not have sentencing guidelines in the sense that the federal courts do. Donald Trump is an individual with no prior felony convictions who is charged with Class E felonies. The statutory sentencing range for these offenses under New York Penal Law Section 70.02(1)(d) is a determinate sentence of 1.5 to 4 years. Under some circumstances, alternative sentencing (like probation) might be authorized. Essentially the whole ballgame is the discretion of the sentencing judge and the question of whether the sentences of conviction would be served concurrently or consecutively. The sentencing hearing would happen only after a jury enters its verdict on guilt or innocence, and only in the event that there was a conviction on at least one count of the indictment. It would be an evidentiary hearing at which evidence regarding an appropriate sentence would be presented by the prosecution and the defense. I am not familiar enough with the facts of the complaint and the applicable New York State Penal Law provisions to know how the issue of consecutive v. concurrent sentences would be resolved. | "Explanations relating to the Charter of Fundamental Rights" on the website you linked to is very clear that the Charter of Fundamental Rights only means the EU institutions can't discriminate based on age, and that EU law is not allowed to be age discriminatory. It doesn't mean that individual acts of age discrimination are illegal: In contrast, the provision in Article 21(1) does not create any power to enact anti-discrimination laws in these areas of Member State or private action, nor does it lay down a sweeping ban of discrimination in such wide-ranging areas. Instead, it only addresses discriminations by the institutions and bodies of the Union themselves, when exercising powers conferred under the Treaties, and by Member States only when they are implementing Union law. The practice of youth and senior discounts is older than the charter of fundamental rights. The charter will be interpreted in the light of continuity, it definitely wasn't the intention to outlaw price discrimination. There are specific laws that make price discrimination based on certain principles legal, e.g. UK equality act: Age discrimination - when discrimination is allowed in the provision of goods or services | First, let's be clear. Under the relevant Australian law, this person is an Australian citizen, This is for two reasons. First, because he or she is descended from someone who was born in Australia in the time period from January 26, 1949 to August 19, 1986 (or who was a British subject born in Australia prior to January 26, 1949), and second, because a child born in Australia after 19 August 1986 (and who is not otherwise an Australian citizen) and who lives in Australia, automatically acquires Australian citizenship on his or her 10th birthday, if the child has not been granted or otherwise acquired Australian citizenship in the meantime. This occurs automatically (by operation of law), and applies irrespective of the immigration status of the child or his/her parents. So, the question is not one of status as an Australian citizen, but of proof of status as an Australian citizen. This individual is not truly stateless. Also, even if the parents (contrafactually) were stateless rather than being Australian citizens, which they were, children born in Australia whose parents are stateless and not entitled to any other country's citizenship may in some circumstances apply for and be granted Australian citizenship. One of the reasons that Australia allows this rule is that in order to deport someone you have to know that the person deported is a citizen of the country to which the person is deported. If you are a stateless person in Australia (as this person is not, but someone might suspect them of being), you can be denied rights the flow from citizenship, rather than merely from being a person or being a resident. But, you can't deport a stateless person because you have no place to deport them to. Related to this fact is that Australia is a party to the Convention on the Reduction of Statelessness (1961), a multilateral international treaty. In respect of contracting states: "Stateless birth" on their territory attracts the grant of their nationality (article 1). Otherwise stateless persons may take the nationality of the place of their birth or of the place where they were found (in the case of a foundling), otherwise they may take the nationality of one of their parents (in each case possibly subject to a qualifying period of residence in that State) (article 2). A stateless person has some time beyond attaining adulthood to seek to claim the benefit of the Convention. That time is always at least three years from the age of eighteen (article 1(5)). Transfer of territory between states must occur in a manner that avoids the occurrence of statelessness for persons residing in the territory transferred. When a State acquires territory, the inhabitants of that territory presumptively acquire the nationality of that State (article 10). Persons otherwise stateless shall be able to take the nationality of one of their parents (possibly subject to a period of prior residence not more than three years) (article 4). Absent circumstances of fraudulent application or disloyalty toward the contracting state, deprivations and renunciations of citizenship shall only take effect where a person has or subsequently obtains another nationality in replacement (article 8). The United Nations High Commissioner for Refugees (UNHCR) will issue travel documents evidencing nationality to persons, otherwise stateless, having a claim of nationality under the convention. Birth on a sea vessel or aircraft may attract the nationality of the flag of that vessel or craft (article 3). Disloyal or certain criminal conduct may limit an individual's ability to avail the benefit of the Convention (article 8). The benefit of the Convention may be claimed by guardians on behalf of children (article 1(1)). States may impose a period of residence qualification for granting nationality to persons who may be otherwise stateless. That period is a maximum five years immediately prior to application and maximum of ten years overall (article 1(2)). There is also the question of proof. What suffices as proof sufficient for an immigration and nationality official varies, and there are probably presumptions that would be relevant. The fact that you are currently resident in Australia, that you have no recollection of living anywhere else or being told that you live anywhere else, your own testimony under oath regarding your place of birth and ancestry, any documentation that exists of you being in Australia in the past, and the fact that you speak English in an Australian accent fluently and speak no other language, would also be evidence of your citizenship or might trigger a presumption in favor of assuming that you are a citizen unless proven otherwise. The government can also change its processes to fit special circumstances. For example, during the Vietnam War in which the United States was involved, a significant number of children were born to U.S. soldier fathers and Vietnamese mothers in Vietnam. Ordinarily, under U.S. law, it is necessary to establish that a particular person who is a U.S. citizen was your father. But, in the aftermaths of these births, there was a period of time at least, when anyone born in Vietnam to a Vietnamese mother, who was racially part-Vietnamese and part either European or African in ancestry, was presumed based upon appearance alone to be a child of a U.S. citizen present in Vietnam in connection with the war effort and granted citizenship by birth, with their place of birth and mixed race alone sufficing to establish their citizenship. It wouldn't be hard to imagine Australia adopting such a rule in the case that you describe. Also, even if such a per se rule were not adopted, usually the ultimate test in a proceeding to establish citizenship is proof by a preponderance of the evidence that it is more likely than not that this person is an Australian citizen, and that standard could probably be met by any official who was not intentionally inclined to bear ill will to this person or their group. Competent legal representation and expert testimony would likely help the person to establish their citizenship. | As a general rule, countries tend to recognize marriages performed abroad - even if those marriages could not legally be performed in the country. (So a 14 year old couple from North Carolina would be considered "married" in the UK. Note: that doesn't mean they can legally have sex.) There are exceptions: countries which don't permit polygamy often don't recognize polygamous marriages performed where they are legal. There would need to be evidence of the marriage though (as Jerry Hall found to her cost when she "divorced" Mick Jagger, and he successfully claimed that their wedding in Bali was not official). |
Does nationality affect punishments under the Kuwait system of justice? I saw another American steal some expensive items in Kuwait. He was dragged away by the hisbah and some Kuwaiti national guard. I can understand some Arabic from being in Iraq and I'm pretty sure I heard someone say he was going to lose a hand for stealing. Does it matter if you are American in Kuwait when it comes to Sharia punishment? | In Kuwait, Shari`a law only applies to family law for Muslim residents. However, if there were a hand-chopping penalty for theft, it would derive from Shari`ah. Article 31 of the constitution says "No person shall be subjected to torture or to ignominious treatment", which at least suggests that hand-chopping is not allowed. This also suggests that corporal punishment is not allowed outside the home, and this suggests that "Article 219 of the criminal states the punishment as being up to 2 years of jail time or/and a fee of up to 2000 Rupees". Even resident Muslims would not be subject to legal hand-chopping. In Kuwait. | The standard of proof for a criminal conviction is the same. So they would similarly need to prove beyond a reasonable doubt to convict the foreign national of a crime. But deportation is not a criminal proceeding, and has a different standard of proof. (In deportation you also don't have criminal defendant rights like right to an attorney if you can't afford one.) I believe the standard is "clear and convincing evidence". | The problem with Solution 2 is that government officials in the United States enjoy qualified immunity with respect to actions that they did while acting under color of law. It's not total immunity, but if they do things by the book, they cannot be prosecuted even if something goes wrong (even when doing things by the book, Police deal in very volatile situations and things can still go wrong because of an X factor to specific for the training manual to cover.). In other cases, it may be because multiple officers are working the scene and Office A lied to Officer B about the situation. Consider Officer A pulls over a suspect and realizes it was someone who was suspected of a crime, but couldn't prove it. He calls for back up and Officer B arrives. Upon arriving on scene, Officer A tells B to search the trunk of the car despite the fact that A had not received consent from the suspect nor has a warrant, nor cause to make a search of a trunk of a vehicle. B makes the search and finds [the bloody knife/the stash of drugs/the smoking gun/the match to a child's shoe that was missing from the kidnapping scene/ insert other incriminating evidence]. Under system (2), since it was Officer B who made the illegal search, B would be liable for it, even though Officer A lied about having legal reason for a search of the trunk space. But what's more... if the evidence is gonna be used anyway, what's to stop the cops doing it again? After all, there is very little recourse for those who are illegally searched to contest this in court (If I'm illegally searched and don't have anything on me, I have to take this to civil court, which is a different animal than Criminal Court and exposes me to broader Discovery... aka gives the cops free reign to search my property for a hell of a lot more illegal things.) or just sit back and count my 4th amendment rights (the section of the constitution protecting against unwarranted search and seizures) as worth less than the paper they're printed on. Oh, and by the way... that second word seizure... that means that they will be taking my property (or myself if they arrest me) and will not be giving it back for some time while they process it... if it's a legal to hold item (like my laptop that I do work on) that's going to make it harder for me to do my job which injures me further in lost business and income. In other cases, it could be they have a warrant for a large item (a stolen big screen tv) and while searching for it, open my sugar bowel and find evidence of a crime unrelated to theft of the television (i.e. opening a baggie of weed). This is actually an illegal search because, unless I am a wizard, a Time Lord, or Mary Poppins, there is no reason why a container smaller than a big screen TV should ever be searched when looking for a Big Screen TV and the cops should logically see this as out of bounds of the search warrant. The nature of this is damaging before the legality of the search can be determined, and because the search may have been out of scope of the warrant that was otherwise justified, the rule of making the evidence of a crime inadmissible was held in order to prevent LEOs from doing this because they could. This rule also started to take formation prior to the Revolutionary War. British Law had ruled against compelled confessions being inadmissible as evidence in 1769, a full six years before the Revolutionary war started (1775) and seven years before the publication of the Declaration of Independence (1776). Now there are some exceptions that can get the evidence brought back in, such as plain view ("The suspect's vehicle is a pick up truck with an open bed, the murder weapon was lying in the bed covered in blood"), inevitable discovery ("We have developed evidence by other means that would have lead us to this evidence legally") and Exigent Circumstances ("We believed someone inside the property was in grave danger if we did not enter the property immediately and that's when we found a cache of stolen Big Screen TVs!) and Good Faith (the Warrant was authorized for the wrong street address of the target but we found the evidence of an unrelated crime in a place the warrant authorized us to search. Everything but the goofed up address was done by the book.). | Here's what I had to do : After going through this harrowing phase, I thought I will post an update in case some one is in such a situation. The Northern Territory's Personal Violence Restraining Order act has a clause (section 21) which basically says if the applicant believes a third party knows the defendant's name then the applicant can request the court to order the third party(power, water, electoral roll, etc) to provide the name if the applicant has already made reasonable efforts in finding out the persons name and hasn't been able to. The third parties will only oblige to a court order. I am almost certain every state/territories' act (in Australia) will have such a clause. It was a challenge to get the court registry to accept the application as the front counter staff/supervisor/supervisor's supervisor were all unaware of this provision (to make an application for a PVRO but get the judge to first order the third party). I had to carry with me the act with the highlighted portion for them to read, analyse and consult with other court staff to even take my application in. At least in the NT there are community legal help services available for no fee and I highly recommend them. | Yes More exactly, nations will not regard places outside of their physical limits as outside of their jurisdictions. Overview Traditionally, a nation has regarded any ship flying its flag as under its jurisdiction, and a place where it may enforce its laws. More recently, many nations will undertake to enforce laws in cases where their citizens are the victims, or in some cases the perpetrators of crimes even within other nations, and more freely on the high seas outside the physical limits or territorial waters of any country. Historically, all nations undertook to enforce laws against piracy wherever they might be committed. Several countries, including the UK and the US, now treat the UN Law of the Sea convention as part of their national law, which defines as piracy: "illegal acts of violence or detention ... against persons or property on board such ship or aircraft" This would include the situation described in the question. Therefore such actions could and quite likely would be prosecuted by any of several countries, depending on the registry of the vessel and the nationalities of those involved. Sources 18 U.S. Code § 7 provides that: The term “special maritime and territorial jurisdiction of the United States”, as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, when such vessel is within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State. ... (7) Any place outside the jurisdiction of any nation with respect to an offense by or against a national of the United States. (8) To the extent permitted by international law, any foreign vessel during a voyage having a scheduled departure from or arrival in the United States with respect to an offense committed by or against a national of the United States. This US DOJ page says: Among the offenses within the special maritime and territorial jurisdiction of the United States are the crimes of murder, manslaughter, maiming, kidnapping, rape, assault, and robbery. Pursuant to 18 U.S.C. § 7(1) there is also jurisdiction over such offenses when they are committed on the high seas or any other waters within the admiralty and maritime jurisdiction of the United States that is out of the jurisdiction of any particular state. See JM 9-20.000 et seq. The page "Maritime Offenses" from the law offices of Trombley and Hanes says: The Federal government also exercises jurisdiction over certain maritime offenses. There is Federal jurisdiction for offenses committed on American vessels in the territorial waters, harbors and inland waterways of foreign nations. See United States v. Flores, 289 U.S. 137 (1933). ... A number of Title 18 sections specifically declare certain conduct to be a Federal crime if committed “within the special maritime and territorial jurisdiction of the United States.” See, e.g., murder, 18 U.S.C. § 1111. In some instances, the Assimilative Crimes Act, 18 U.S.C. § 13, is also applicable. See also, 15 U.S.C. § 1175; 15 U.S.C. § 1243; 16 U.S.C. § 3372. 18 U.S. Code § 1111 (b) provides that: (b) Within the special maritime and territorial jurisdiction of the United States, Whoever is guilty of murder in the first degree shall be punished by death or by imprisonment for life; Whoever is guilty of murder in the second degree, shall be imprisoned for any term of years or for life. The Britannica Article on "Piracy" says: Because piracy has been regarded as an offense against the law of nations, the public vessels of any state have been permitted to seize a pirate ship, to bring it into port, to try the crew (regardless of their nationality or domicile), and, if they are found guilty, to punish them and to confiscate the ship. The UN page on Piracy says: The 1982 United Nations Convention on the Law of the Sea (UNCLOS) provides the framework for the repression of piracy under international law, in particular in its articles 100 to 107 and 110. The Security Council has repeatedly reaffirmed “that international law, as reflected in the United Nations Convention on the Law of the Sea of 10 December 1982 (‘The Convention’), sets out the legal framework applicable to combating piracy and armed robbery at sea, as well as other ocean activities” (Security Council resolution 1897 (2009), adopted on 30 November 2009). Article 100 of UNCLOS provides that “[a]ll States shall cooperate to the fullest possible extent in the repression of piracy on the high seas or in any other place outside the jurisdiction of any State.” The General Assembly has also repeatedly encouraged States to cooperate to address piracy and armed robbery at sea in its resolutions on oceans and the law of the sea. For example, in its resolution 64/71 of 4 December 2009, the General Assembly recognized “the crucial role of international cooperation at the global, regional, subregional and bilateral levels in combating, in accordance with international law, threats to maritime security, including piracy”. The UK Piracy Act of 1837 defined as a crime: Whosoever, with intent to commit or at the time of or immediately before or immediately after committing the crime of piracy in respect of any ship or vessel, shall assault, with intent to murder, any person being on board of or belonging to such ship or vessel, or shall stab, cut, or wound any such person, or unlawfully do any act by which the life of such person may be endangered, shall be guilty of felony... The more modern UK law, the Merchant Shipping and Maritime Security Act of 1997 embodies the UN law of the Sea convention, including its article 101, which says: Piracy consists of any of the following acts: (a) any illegal acts of violence or detention, or any act of depredation, committed for private ends by the crew or the passengers of a private ship or a private aircraft, and directed— (a) (i) on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; (a) (ii) against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; | Any country is free to decide what actions are considered to be crimes, and what crimes are prosecuted depending on whether you perform the action in the country, outside the country, and depending on whether you are a citizen, a resident, both, or neither. They can also decide what are accepted defences in court and which are not. Any other country is free to decide under which circumstances they will ever extradite someone to that first country. Now you have to check the laws of the individual countries. | Because the relevant law enforcement decided not to In the US (and indeed in all common law jurisdictions), law enforcement and prosecutors have discretion over when and if to lay charges by considering such things as the wishes of the victim, the prospects of success and whether charges would be just in the circumstances. At best, this allows a measured response to the particular situation. At worst, it enables discrimination and persecution. Either way it solves the problem of allocating limited resources to comparatively unlimited need. | In many countries (for instance, the US), churches and mosques are private property. In general, the owner of private property can throw anyone off their property; claiming you're doing an extensive period of praying doesn't matter, because they are under no obligation to let people stay as long as needed to pray (they can kick someone off the property for just about any reason). If there's a contract in play things are different, but contracts aren't in play in this situation. That said, nothing stops the church or mosque from letting the homeless stay there; this is actually not that uncommon (charity being a fairly common religious virtue). |
Why do my lawyers want to keep copies of our green cards? My company hired a law company to apply green card for me and my family. They did a good job, we all have green cards now. However, they asked for copies of all our green cards, and I don't feel comfortable at all, given the fact that they already have all of our informations, e.g. passports, SSNs, etc etc I plan to reject this request. However, I wonder if there is any valid/legal reason that they want to keep a copy of our green cards. | Don't be so quick to refuse; they are representing you, and working for your company. Ask the law firm and your work supervisor why the firm wants copies. Realize that the law firm and the lawyers are legally bound to work in your best interest in terms of immigration, your green cards and the security of your personal information. See California Bar - Rules of Professional Conduct. Such personal information is very likely to be secure with them, as it is punishable by law if sensitive information like SSNs is stolen or leaked, and could be a breach of rules of the California Bar, too. | Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics | This is not legal advice, It is not even primarily a legal opinion. It is a legal position. The lawyer, acting on behalf of the agency from which you requested information, is giving the reasons why that agency is declining your request. The lawyer is presumably either an employee of the agency, or has the agency as a client. In any case, this is notice of the position that the agency would be likely to adopt if you took further legal action, such as a suit to compel disclosure. Lawyers provide such position statements ion behalf of clients or employers all the time. Such statements indicate why certain action is taken, what basis the client or employer has for taking or not taking certain action, and often indicate the nature of the defenses or theories that will be used should a lawsuit follow, although the client or employer is free to change the theory at the pleading stage. Not only is it not unethical for the lawyer to respond in this way, the agency is, I am fairly sure, required by the law to provide a valid reason when a request is declined. That is what they have done, provide a reason that they claim is valid, with some legal reasoning about why it is valid. Note that I express no view on whether the reason given is in fact valid, or would be sustained in a suit. That would be a different question. | Yes, this is a valid concern As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other. As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means. Get it redrafted. | I was told that when you sign something in the UK, then it is your signature, no matter what name you are using. So if you sign a contract with my name, then it's your signature and you are bound by the contract. Things might be invalid because you signed and not me. For example, if you sign a contract selling my car in my name, then that contract is not valid. If some document needs signatures of two witnesses, and you sign with your name, then with my name, then there are no two signatures. As far as I know, signing under a false name is not in itself criminal, but might very well be supporting fraud, for example, and might therefore be illegal. The contract for the sale of my car, signed by you using my name, would very likely be part of fraud and therefore criminal. | All residents in Germany need to have a registered address. The reasons for that are numerous: no need for a separate voting registration, it gives a place to deliver legal notices, it helps enforcing tax regulation (though tax law has another definition of "residence"), certain taxes are assigned to the municipality where you are registered, no need to do a utility bill or credit report dance when trying to prove your address to third-parties, it was always done like that. The last is reason enough as far as bureaucracy is concerned. As far as your question goes, there are a few wrong assumptions. First, nobody is trying to limit or deny registrations. Municipalities actually get money for every resident they have registered through tax allocation. Second, if you (semi-)permanently live at some place you are not considered "officially homeless" but as someone has didn't properly register themselves (which could result in a fine). Third, multiple people can be registered at the same address. How else could people register themselves in huge apartment buildings? Or even a family living together? If there is a suspicious amount of people registered they might want to check whether other regulation (such as minimum space per person) is adhered to. Fourth, to register somewhere you need proof that you actually live there. This is where you probably ran into problems. This proof is usually a letter given by the person allowing you live at a place. Note that this is not necessarily the owner of the place but literally the person allowing you to stay (the authorities can check with the owner though). Often subletters won't sign that piece of paper, either because they think they are not allowed to or they don't have permission by the owner to sublet the place to begin with. If that happens you are supposed to tell that to the authorities (§ 19 Abs. 2 BMG) who then can choose to fine the one providing the place for refusing to sign the paper. (The need for proof was recently reintroduced after it was noticed that there was a huge amount of people who registered at an address where they didn't actually live.) Fifth, if you never have been registered before you can't actually properly pay your taxes as you need a tax ID for that. This is automatically assigned when you – surprise – register for the first time. If you are not an EU/EEA/CH citizen you also need to register yourself before they can change anything about the residence permit within Germany. To end with an answer to your question if taken literally: German citizens can register themselves as homeless (ohne festen Wohnsitz) if they really are. For foreigners this is a bit more complicated. EU citizens usually don't have freedom of movement rights if they can't properly support themselves, a living space is supposed to be part of that. Other foreigners likely violate their residence permit. | Is this legal? Yes Or does it mean that employee will be in breach of his/her contract? Yes You are assuming that if the evidence is allowed to be presented then that automatically means that keeping it for that purpose is not a breach of the contract. This is not necessarily so; it can be both at the same time. That said, it is unlikely that an employer would attempt to sanction an employee for this as the courts would (rightly) see it as an attempt to pervert the course of justice. As in most things in the law it is possible for all parties in a matter to be on the wrong side of it. If you want to come to the tribunal with "clean hands" then the best thing to do is make a record (not a copy) of the relevant documents and return then to the employer. Before going to the tribunal get your solicitor to subpoena the documents that you want - they will have to produce them and you have them without breaking your contract. | They don't actually claim to have a patent. Lots of people license a patent, and then they are using "patented technology". The only effect of this statement is: If you want to copy their product, you better find out what patent they are licensing, otherwise you might be in legal trouble. And their statement means you should have known that your copy of their product is covered by some patent, so you lose some defenses if you are accused of using a patent without license. And of course many customers think if something is patented then it must be good. Which is not true obviously. But logically who owns the patent doesn't make a difference to that, so their statement isn't misleading IMHO. |
Can I copy & paste an entire article from Medium if it's written by me? If I use the blogging platform Medium, to which extent can I (not) reuse the content I have published there on a personal blog website? My naive view on that matter is: I am still the owner of the text and can republish it anywhere, same goes for own or public domain images I can use links with text and image previews on my own blog, linking to Medium-posts I cannot embed Medium posts in an Iframe on my own site I cannot copy comments from medium which belong to their rightful owner, even if I participate in the discussion under the article Is that correct? | Pretty much everything you need to know about the ownership and licensing of your material on Medium is in the Medium TOS you contractually agreed to when you signed up with the service. Basically, you granted Medium a license to use the work, but you did not agree to an exclusive license nor turn over copyright to them. Part of that Terms of Service – Medium Policy reads: Content rights & responsibilities You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. You’re responsible for the content you post. This means you assume all risks related to it, including someone else’s reliance on its accuracy, or claims relating to intellectual property or other legal rights. You’re welcome to post content on Medium that you’ve published elsewhere, as long as you have the rights you need to do so. By posting content to Medium, you represent that doing so doesn’t conflict with any other agreement you’ve made. By posting content you didn’t create to Medium, you are representing that you have the right to do so. For example, you are posting a work that’s in the public domain, used under license (including a free license, such as Creative Commons), or a fair use. We can remove any content you post for any reason. You can delete any of your posts, or your account, anytime. Processing the deletion may take a little time, but we’ll do it as quickly as possible. We may keep backup copies of your deleted post or account on our servers for up to 14 days after you delete it. Pertaining to presenting Medium content in an iFrame on another site, this is reasonably close to not allowing that: You may not do, or try to do, the following: ... (2) access or search the Services by any means other than the currently available, published interfaces (e.g., APIs) that we provide;... You can use Embed Code Generator | Embedly to embed an iFrame of a Medium page on another site. But contacting Medium via the email at the bottom of the TOS would tell you for sure if it is OK. Comments on your pieces on Medium do belong to the owner. And You own the rights to the content you create and post on Medium. appears to cover the idea of copying your material from Medium to your own site. If in doubt, ask them. | It's complicated You still own your own posts First off, you own everything that you originally created. Posting it on Stack Exchange doesn't affect your rights to your own content. Incorporating suggestions If you copy any of the text from posts that were created by others, you must comply with the CC BY-SA license. The exact version will depend on when the content was posted, and can be viewed by clicking the "Share" link or viewing the post's timeline via the clock icon on the left. Currently, new posts are licensed under CC BY-SA 4.0, which requires you to (basically) provide attribution with the creator's name, a link back to the content, and an indication of whether changes were made. A more detailed description of the exact requirements is here. You would also be required to license the work that you incorporated it into under the same license. However, game mechanics aren't copyrightable. If you merely used mechanics suggested in the posts without actually using the actual creative expression (for instance, names or description text) from the posts, you would not be required to provide any attribution or use any particular license, because you didn't use any copyrightable material from the post. A thank-you would still be nice All that said, it's still a nice thing to do to provide some sort of informal thanks to those who provided valuable assistance, even when you're not legally required to do so. | You don't say where you are located. Copyright laws are different in different countries, am going to assume US laws. Under US law, a faithful digitization of a book does not get a new copyeight, see Bridgeman Art Library, Ltd. v. Corel Corp., 25 F. Supp. 2d 421 (S.D.N.Y. 1998) and thw Wikipedia article about that case (On the issue of mrequired originality, see also FEIST PUBLICATIONS, INC. v. RURAL TELEPHONE SERVICE COMPANY, INC. (No. 89-1909.) (1991) which dealt with copying a telephone directory.) The court in Bridgeman held that: It is uncontested that Bridgeman's images are substantially exact reproductions of public domain works, albeit in a different medium. The images were copied from the underlying works without any avoidable addition, alteration or transformation. Indeed, Bridgeman strives to reproduce precisely those works of art. ... The mere reproduction of a work of art in a different medium should not constitute the required originality for the reason that no one can claim to have independently evolved any particular medium.'" As discussed above, the law requires "some element of material alteration or embellishment" to the totality of the work. At bottom, the totality of the work is the image itself, and Bridgeman admittedly seeks to duplicate exactly the images of the underlying works. ... [O]ne need not deny the creativity inherent in the art of photography to recognize that a photograph which is no more than a copy of the work of another as exact as science and technology permit lacks originality. That is not to say such a feat is trivial, simply not original. The more persuasive analogy is that of a photocopier. Surely designing the technology to produce exact reproductions of documents required much engineering talent, but that does not make the reproductions copyrightable. The Bridgeman court was actually construing UK law, but the earthlier phase of Bridgeman i and the SCOTUS case of Feist show the same result under UIS law. Note that books and other works published before 1925 are now out of copyright in the US. Copyright can also be lost ion other ways, such as publishing without a copyright notice before the effective date of the 1976 act, and failure to properly renew a work published in the US before 1964. Assuming that the book is not under copyright, neither the library nor anyone else has a US copyright in the PFD. Unless the library imposes some additional restriction by contract, any such PDF may be copied or shared freely. It may even be sold or rented. And the validity of such an additional agreement would be questionable, but since the question does not mention such an agreement, I will not go into that further. | That post is probably illegal. Because she is making false assertions about you (that are presumably damaging your reputation), she is likely liable for defamation. Because she has copied a picture of you without authorization, she is likely liable for violating the copyright of whomever owns that picture. Commenters have suggested she might invoke a fair-use defense, but I would expect it to fail. The four fair-use factors are: The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes: Both Plaintiff and Defendant are using using the photograph to identify the holder of an account -- a Facebook account in P's case, a business account in D's. D is using the photograph in connection with a profit-making enterprise, not for educational purposes, and her use is not transformative. The nature of the copyrighted work: Photography is a creative art at the core of copyright's purposes, generally entitled to thick protection. Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074 (9th Cir. 2000) ("[P]hotography entails creative expression warranting copyright protection.") The amount and substantiality of the portion used in relation to the copyrighted work as a whole: There is no indication that D took anything less than the entire photograph. The effect of the use upon the potential market for or value of the copyrighted work: The question is not only whether the defendant's use affected the actual market for the protected work, but whether many people doing the same thing would depress the potential market for the work. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994) (Courts must consider "whether unrestricted and widespread conduct of the sort engaged in by the defendant would result in a substantially adverse impact on the potential market.") The potential market for the image is probably very small, but widespread unauthorized copies, publicly displayed, would undoubtedly depress whatever market exists. So all four factors cut against the defendant. Fair use is a loser defense here. | By posting an image (or any other content) on an openly accessible page, a person such as Alice is implicitly giving permission to anyone to view or read that content, although not necessarily to make copies of it. A link from a page operated by Bob to such content is not making a copy, nor is it any other form of infringement. However, there are other possible cases. For example, if Alice sells access to her pictures, placing them behind a paywall, so that only those who have paid have a valid ID/PW set to gain access, then if Bob provides a link that bypasses the paywall, that may well be contributory infringement (CI). When Bob builds a business model on encouraging or facilitating infringement, that will be CI. If Alice does not post her pictures, but Charlie gets copies and posts them without permission, a link from Bob's site to Charlie's may be CI, particularly if Bob gets per-click revenue or other benefits for increased traffic. | Quoting content may or may not constitute copyright infringement, depending on the various factors that go into the fair use defense. Short quotes which are made for the purpose of discussion, research and commentary and not for copy would be squarely in the domain of "fair use" under US law. That means that the copyright owner would not succeed in suing you for quoting them: under the statutory mechanism for recognizing his right to his intellectual product, there is a limit on how much control he can exert over your behavior (since the two of you have not worked out some kind of agreement -- copyright law creates rights even when there is no contract). As for Facebook, you have a contract with them, embodied in the terms of service. You have been given permission to access material that they host (permission is required, under copyright law), and their permission is conditional. It says "you may access stuff on our platform only as long as you do X": if that includes a clause "don't be nasty", then that limits your right to speak freely and be as nasty as you'd like. If it says "don't quote even a little", that means you cannot quote even a little, even when you would have the statutory right to quote a little (or, to be nasty). Fair use would mean that you can't be sued for copyright infringement of the stuff that you quoted a little of. You can, however, be expelled from Facebook. You probably cannot be sued for "accessing Facebook without permission". There is a federal law against unauthorized access of computer networks, and there was a failed attempt to construe violation of a TOS as "unauthorized access" – it isn't. But accessing Facebook necessarily involves copying (that's how computers work), and there is no "fair use" defense whereby everybody has a fair use right to access Facebook. Theoretically you could be sued for copyright infringement, for accessing Facebook's intellectual property without permission. Also, Facebook can rescind your permission to access their content (see this case), and once you have been banned, it is a crime to further access their network. This assumes that there is no overriding limit on contracts that would nullify a no-quoting condition. There is no such limit on contracts in the US, so such a contract would be enforceable. There is also nothing illegal (unenforceable) about a TOS which prohibits automated methods of access. | In Germany, there is no concept that corresponds directly to public domain. You automatically hold the Urheberrecht (~ copyright) for all creative works that you make, and it can't be given up or transferred (§29 UrhG). The work only enters the Gemeinfreiheit (~public domain) 70 years after your death. You can however license Verwertungsrechte (economic usage rights). When you make creative works in the course of employment (see §43 UrhG), your employer automatically gets the Verwertungsrechte necessary in the context for the work, which is typically an exclusive right (no one else, not even you, can use the work). Your are not in an employment relationship with your school, so it has no rights to your works and cannot prevent you from publishing them on copyright grounds. When you see advice on the internet to check with your school first, that is U.S.-specific advice. Since you're still a minor (7–17), you only have limited capacity to enter contracts or legal transactions (bedingte Geschäftsfähigkeit). While you are able to make transactions involving your own means (e.g. buying something with your pocket money) or make transactions that are only to your benefit (such as accepting a gift), other transactions are schwebend unwirksam (~ pending ratification), until your parents agree. The relevant law is in §107 and §108 BGB. This is a problem with open source licenses. If you publish software under a license, this license is schwebend unwirksam. Someone might start using the software under the license. But then if your parents refuse ratification, the license would be invalid, and everyone would have to stop using your software and destroy any derivative works they made. This is a bit of a problem, especially since open source licenses are otherwise assumed to be irrevocable. So if you want to offer a license (including open source licenses), please give legal certainty to the recipients of the license and ask your parents for their consent first, possibly even in writing. Per §107 BGB, the license you offer with their consent will be valid. | That would be pretty much a classical case of copyright infringement. Drawing a thing from memory is copying just as much as drawing a thing with the original before you or xeroxing a thing. The degree of match between the original and your copy may vary depending on how good your memory is, but that doesn't matter, because copyright protection is not about "making exact replicas", it is about copying in any form. |
Can a Secret Service detail protect their charge against law enforcement? I read questions about this on various websites, usually about someone with the initials D.T., but it is a good general question. A protectee is guarded by their Secret Service detail against people who want to assassinate or otherwise hurt them. But what if the protectee is discovered to be a bad guy? Can they insist on the detail to guard them from legitimate arrest? Or would the detail have to let the cops bust him/her? (I guess the detail would stay at the detention facility to watch over their charge.) | Most secret service details are protection for heads of government/state and thus their details would be afforded Sovereign Immunity (Such as POTUS, VPOTUS, and First and Second Families) OR Diplomatic Immunity (visiting dignitaries and leaders of other nations). Typically there are more diplomatic ways to handle the cases in the latter. In the former case, thus far, it has not been handled. During visits, the traditional Executives and Families are usually closely guarded by the Service with additional law enforcement form local jurisdictions called in to aid in the protection, usually to secure routes the Motorcade will take to a designation (I speak from personal experience, POTUS coming to town is a nightmare on traffic). If they are speeding, they are typically doing so down a completely empty highway with police escort. From this point, most under of the Service would be monitored and controlled so closely, at least one Agent would notice if any protected was committing a crime and would have to write it up in a report. There is also considerable debate in legal circles if the President and Vice President could be arrested for a crime while in office, with the general acceptance being that they could not and would need to be impeached by congress. Secret Service will continue to protect former Presidents and Vice Presidents for life, along with their spouses and children up to a certain age. With all that in mind, it would not so much be that the Secret Service would prevent arrest of an individual under their protection so much as the Secret Service would be the arresting authority. As they are law enforcement agents under the Federal Government, they can legally arrest people and then hand them to the proper law enforcement agency to effect the arrest. This would mostly happen with candidates for office OR former presidents OR family at any point in time as the scenario described is a bit harder to make a legitimate arrest. In fact, the Secret Service does have arrest authority with one of the highest conviction rates of any Law Enforcement Agency in the Country. It's just most crimes they arrest have nothing to do with threats to those under their protection. The Secret Service is also charged with investigation of counterfeiting of US currency and they are very good at it. This was actually their original sole function in the U.S. government and they still exist under the Treasury Department to this day. At this point, if you're wondering how they got the job of protecting important people in the executive branch from that, well, it's simple. At the time of his assasination, the legislation to create the USSS was on Licoln's desk. At the time of their creation, the only other Federal Police services were the U.S. Park Police, the Postal Inspection Service, and the U.S. Marshals. The first two had specific jurisdictions and the Marshals were undermanned so the USSS was tasked with investigating all sorts of financial crimes and quickly became the most successful U.S. Law Enforcement Service. They were also the first U.S. Intelligence and Counterintelligence agency (though they no longer are part of the Intelligence Community) until the FBI took on those duties. So following the Assassination of William McKinley in 1901, Congress authorized them to take up full time Presidential Protection because at the time, they were pretty much doing everything else. | The principle of constitutional law is that in order to arrest you, the officer would need probable cause. Certain acts are in themselves violations of the order (being closer to another person that 6 feet, illegal sneezing). Walking in public does not per se constitute a violation. In order to briefly stop a person walking on the street (a "Terry stop"), the officer needs a reasonable suspicion that the person is in violation of the law. That means there has to be a reason, and a gut feeling does not count. An officer would not (legally) be able to stop every person they see walking down the street / driving, and demand an explanation of where they are going. If a person is just aimlessly wandering down the strees with friends (even if they are sufficiently separated), that could suffice to justify a stop, given the limited legal excuses for being outside your home. | Where the President explicitly tells a newspaper that they should reveal their sources. Is this not illegal in the US? It is not illegal. Well, it would be a U.S. Attorney, rather than the President himself. You're thinking of shield laws, but no such law exists at the federal level. Moreover, although some people might think that the First Amendment ("freedom of the press") would protect a journalist in such a case, the Supreme Court has held that it doesn't, though the government is required to "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest". So if a reporter were subpoenaed in federal court to reveal a source, and they couldn't convince a court to quash the subpoena under the Branzburg test, they'd have to either reveal their source or be held in contempt. In practice, many reporters have chosen the latter, and served time in jail rather than reveal the source. For instance, Judith Miller. There've been a number of proposals to create such a federal law, but so far Congress hasn't seen fit to do it. According to the Wikipedia article, every state except Wyoming has some sort of shield protection for journalists, either in statute or case law, though the protections are not necessarily absolute. So a state court or prosecutor would find it much more difficult to enforce such an order. | Mere ideas are not, as others have said, protected by copyright. However, the police officer in such a situation may have a duty of confidentiality, particularly if s/he is informed that the contents of the phone are confidential. For example the "Officer's Code of Conduct" of Canton Ohio, says: Whatever a Police Officer sees, hears or learns of that is of a confidential nature will be kept a secret unless the performance of duty or legal provision requires otherwise. Members of the public have a right to security and privacy, and information obtained about them must not be improperly divulged. Many police departments have similar codes of conduct or policies. Such a policy might apply in the circumstances described in the question. In this page on "Confidential information" posted by the TaylorWessing law firm, it is said that: There are three circumstances in which the disclosure of information gives rise to an obligation of confidence: An obligation imposed by contract – for example, non-disclosure agreements. An obligation implied because of the circumstances of disclosure – this is determined on the basis of whether a reasonable man standing in the shoes of the recipient of the information would have realised that the information was being given to him in confidence. An obligation implied because of the special relationship between the parties concerned – for example, employer/employee relationships. The best way of ensuring that confidential information is recognised and treated as such is by contract. If no express requirement for confidentiality is imposed, the manner in which the discloser treats the information can be held as indicative of its level of confidentially. Talking about information in public places, for example, would cause the recipient to assume it was not confidential in nature. An action for breach of confidence is based on the conscience of the recipient who must have agreed or known that the information is confidential. Thus an action for breach of confidence can be brought against the original recipient of the information and any subsequent recipient who becomes aware of the fact that the information is confidential. An action for breach of confidence may be brought against a person who has used or disclosed, or threatened to use or disclose, confidential information without permission. A police officer engaged in a search of confidential documents, whether found on a phone, on a computer, or in a filing cabinet, is in a "special relationship" with the sub ject of the search, and the "circumstances of disclosure" are unusual. Use of such information for private, personal gain unrelated to any police function might be held to violate an implied duty of confidentiality, particularly if the officer is informed of the confidential nature of the documents. If the documents contain or constitute trade secrets, unauthorized use will give grounds for a lawsuit. This would not apply to proper use within a police investigation or criminal case, but it would apply to private use or disclosure by the officer. in "Release of personal information to police: your privacy rights" from the Government of Ontario it is said that: Ontario public sector organizations, such as provincial ministries and agencies, municipalities, schools, and transit systems, are required by law to protect your personal information and to follow certain rules when collecting, using, and disclosing your personal information. This document is primarily about when other governnment agencies can release personal information to law enforcement, but it might be taken to imply a similar obligation to respect privacy being imposed on law enforcement officers. In this page and other linked pages the UK metropolitian police indicate that they are subject to the Data Protection Act 2018 This is closely related to the GDPR. This restricts processing of personal data to lawful purposes. In the absence of the consent of the person searched, I doubt that use of information for personal gain having no connection with a police investigation would constitute a lawful purpose. I have not found an authoritative source, nor a court case, in which the situation described in the question, nor any closely similar situation, is addressed or decided. | It can go either way. If detectives have been working to build a big conspiracy case against you, they might get charges filed before they roll up to arrest you. If a cop catches you mugging someone, they'll arrest you on the spot and charge you later. | In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source. | In the USA communication between an attorney and their client is "privileged". This makes it illegal for, amongst other things, the police to listen in to conferences between a suspect and their attorney. However in practice there is often little to prevent the police actually doing so. | No. Refusing to tell the address alone is not a reason to detain somebody. But there are situations where the authorities can demand that a person identifies himself or herself, including such details as the address (or lack of a permanent residency). In such a situation, failure to identify yourself can get you locked up. Also, the tone of your posting seems to question the legitimacy of the UK government and legal system as a whole. That is a box you're putting yourself into, and the company you find there is not very pleasant. |
If I don't want to patent something, what can I do to ensure the patent office doesn't unintentionally grant the patent to someone else? Say that I have created a hypothetical new invention. I would like for it to be used by as many people as possible without restrictions, so I deliberately choose not to pursue a patent on it. As described in the answers to What if I don't patent my invention?, someone else can patent my invention unless the US Patent Office is aware that there is prior art, established by me producing and selling my invention. The trouble is, I can't necessarily guarantee that they will become aware of my prior art if I'm not particularly well-known. What can be done to ensure that the patent office knows about my prior work (which I deliberately choose not to patent) and therefore doesn't unintentionally grant a patent to someone else? | There is a history of "giving away patents", which allows the original grantor to foster innovation instead of stifle it. Here are some examples: Sealand Industries - ISO Shipping Container Patented the standard shipping container, then gave away the patent royalty free, allowing a revolution in ocean going shipping. Annually it is estimated that $440 billion are shipped through these containers. Tesla - 200+ patents Elon Musk announced that the company "will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology.". Toyota - Hydrogen Fuel Cell Patents Released 5,680 patents related to hydrogen fuel cells Toyota also released a lot of patents related to development of the Prius The grant of a patent provides the ability for the grantor to pursue infringement lawsuits against companies or individuals, but it does not obligate them to do so. You can give away your patent, open it up to broad licensing, or just openly state that you will not enforce any action related to the lawsuit similar to how Tesla did it. | Before the AIA in 2012 both companies could apply for a patent and if one of the applicants thought they were both trying to patent the same thing they could initiate an interference proceeding. In that proceeding before the board, they each present their evidence as to date of conception and diligent effort from that point to the date of the first filing. The board decided which application went forward. Now the U.S. is with the rest of the world in first-to-file. It doesn’t matter who conceived first unless one actually stole the idea from the other. There is a new derivation procedure to try to prove that. I don’t think it has ever yet happened. One of the "simultaneous" inventors could publish the invention, putting into the public domain. If published before the other's filing date, it would theoretically prevent the other from getting a patent. In any case a patent owner can stop the other from making their product or charge a royalty. There is a narrow case under the AIA where one company has been using a process that another later patents and can retain a limited right to keep using that process but can’t move or expand operations. This is called Prior User Rights. | Yes, this is a valid concern As written, every piece of IP you produce while employed belongs to the employer. This includes your hypothetical game. It also includes your weekly shopping lists, your Christmas card to your Great-Aunt Nellie, the … a-hm … private video you make of you and your significant other. As written this is overly broad and probably unenforceable. However, it’s always better to have clear and legally enforceable clauses in your agreements because unclear, arguably unenforceable ones lead to disputes. To be fair, the employer has probably lifted some (bad) boilerplate and hasn’t actually thought through what it means. Get it redrafted. | Some MP3 technologies are still under patent in the US: you can read the wiki page on that matter to see if it is applicable to what you intend to do. This assumes you write your own code – if you use someone else's conversion software, that would depend on the licensing terms for the software. | That is not at all what USPTO is telling you. Courts do not simply "dismiss" patents - that isn't a terminology you'd ever see used for a patent that was found to be invalid. Timeline of events: United Industries Corporation brought a suit against the owner of the patent, claiming unpatentability. That case went to trial, and the court found the claim to be invalid and that UIC failed to show unpatentability. UIC appealed that decision to the Court of Appeals. The Court of Appeals dismissed the case because both parties agreed to its dismissal (it's possible they reached some external agreement we don't know about). As far as I can tell, at this moment, the patent is active. | In Germany, there is no concept that corresponds directly to public domain. You automatically hold the Urheberrecht (~ copyright) for all creative works that you make, and it can't be given up or transferred (§29 UrhG). The work only enters the Gemeinfreiheit (~public domain) 70 years after your death. You can however license Verwertungsrechte (economic usage rights). When you make creative works in the course of employment (see §43 UrhG), your employer automatically gets the Verwertungsrechte necessary in the context for the work, which is typically an exclusive right (no one else, not even you, can use the work). Your are not in an employment relationship with your school, so it has no rights to your works and cannot prevent you from publishing them on copyright grounds. When you see advice on the internet to check with your school first, that is U.S.-specific advice. Since you're still a minor (7–17), you only have limited capacity to enter contracts or legal transactions (bedingte Geschäftsfähigkeit). While you are able to make transactions involving your own means (e.g. buying something with your pocket money) or make transactions that are only to your benefit (such as accepting a gift), other transactions are schwebend unwirksam (~ pending ratification), until your parents agree. The relevant law is in §107 and §108 BGB. This is a problem with open source licenses. If you publish software under a license, this license is schwebend unwirksam. Someone might start using the software under the license. But then if your parents refuse ratification, the license would be invalid, and everyone would have to stop using your software and destroy any derivative works they made. This is a bit of a problem, especially since open source licenses are otherwise assumed to be irrevocable. So if you want to offer a license (including open source licenses), please give legal certainty to the recipients of the license and ask your parents for their consent first, possibly even in writing. Per §107 BGB, the license you offer with their consent will be valid. | Maybe You linked to the publication of a patent application, not to a patent. Based solely on looking at the format of the number the answer would be, Yes, unless it eventually became an issued patent. As it happens, it did become issued patent US9066511B2. That would make the answer no. Since the application was filed before you started selling them, the fact that you were selling them in 2017 could not be used to challenge the patent. I say the answer is maybe because the patent has been disputed in court and I do not know if the outcome has left the patent valid. You can look this up at the USPTO Public PAIR. Then you need to search with either the patent number or the publication number. When you get to the record of the history of that application look at the Image File Wrapper tab. | As I understand it the rigor required of a provisional patent [application] is less than that of a non provisional patent. While this is true in a sense, there is a lack of nuance here. Provisional patent applications are not examined for formalities. Generally, this is interpreted as being able to omit claims. However, if you're really wild, you can even use a different page size. However, a provisional still needs to be treated during the drafting stage as if it were a non-provisional. This is because the provisional needs to be able to support the non-provisional. Notably, while you do not need to file claims with the provisional, you should still have claims drafted for use in the non-provisional. This is because the description of the provisional needs to be able to support the claims of the non-provisional. If you insufficiently describe your invention in the provisional, it will be as if you never filed the provisional: it will be useless and you'll have lost a year of priority. For this reason, it is not entirely accurate to say that the rigour of a provisional is less than that of a non-provisional patent application. Merely, the filing formalities and fees are lower. What is the risk if the provisional is too narrow? You will not have an earlier priority date for anything not described in the provisional. If you provide in your provisional that your invention must have features X and Y, then you would likely not have support in the non-provisional for your invention just having X alone. So be careful with what you describe as essential (as indeed you would with a non-provisional). That said, if you avoid suggestions that features are essential, and take care to describe broader embodiments as potentially standalone, more detail is always better. What is the risk if the provisional is too broad? The risk is that the provisional will inadequately describe your invention. Claims in the non-provisional will therefore not be entitled to the benefit of the filing date of the provisional. Intervening prior art will therefore deprive your claims of novelty. How do I get in the Goldilocks zone? Dale M's suggestion of hiring a patent attorney, while flippant, is certainly the right answer. But in general, more detail is better. As long as you describe your invention in its broadest embodiment without optional features, then describe each further embodiment while noting that the added features are beneficial but optional, you should be fine. Although this makes for a dull drafting experience, it makes for a strong provisional. |
Is that illegal to settle with money? I live in California. It is illegal for people record my video and voice in a private area without my permission. In a normal situation, I think that I can call police. However, can I ask the person provide me money in exchange that I am not going to call police? | However, can I ask the person provide me money in exchange that I am not going to call police? First of all, the conduct you describe is a tort, in addition to possibly being a crime, and so you could ask them to provide you with money in exchange for a release from tort liability (i.e. not suing them). This is done all of the time and is perfectly legal, although if one is afraid of extortion claims, the safer course would be to file the lawsuit first (and possibly also report the crime to the police first) and then to seek money damages. Once a criminal complaint has been filed and an accusation made publicly, there is no "extortion" element. A lawyer would not be permitted as a matter of professional ethics from proposing a settlement in exchange for not contacting the police, but could obtain money with a threat of civil liability. This is not obviously within the definition of extortion, because reporting them for committing an actual crime would not necessarily be "wrongful" conduct in every situation, and wrongful use of "fear" is one of the elements of the California crime for extortion. But, it is clearly within the definition of "fear" which is defined to mean: Fear, such as will constitute extortion, may be induced by a threat of any of the following: To do an unlawful injury to the person or property of the individual threatened or of a third person. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. To expose, or to impute to him, her, or them a deformity, disgrace, or crime. To expose a secret affecting him, her, or them. To report his, her, or their immigration status or suspected immigration status. This definition makes no reference to the validity of the accusation. It might be possible to determine with more case law research when threatening to report a crime that they have committed is "wrongful use" of "fear". My expectation is that this is something of a gray area and may be quite fact specific (it is not a point upon which there is great uniformity between U.S. states). This excerpt from a California Supreme Court decision helps clarify the line between a legitimate threat and an extortionate one (case law citations and references omitted), and tends to suggest that insisting on money, hinging on a threat that the a criminal complaint will be made otherwise, does constitute extortion in the State of California, even when made by the victim in the case of a crime that was actually committed: Extortion “Extortion is the obtaining of property from another, with his consent ... induced by a wrongful use of force or fear....” (Pen.Code, § 518.) Fear, for purposes of extortion “may be induced by a threat, either: [¶] ... [¶] 2. To accuse the individual threatened ... of any crime; or, [¶] 3. To expose, or impute to him ... any deformity, disgrace or crime[.]” (Pen.Code, § 519.) “Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Pen.Code, § 523.) Extortion has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. “[I]n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” The extortion statutes “all adopted at the same time and relating to the same subject matter, clearly indicate that the legislature in denouncing the wrongful use of fear as a means of obtaining property from another had in mind threats to do the acts specified in section 519, the making of which for the purpose stated is declared to be a wrongful use of fear induced thereby.” “It is the means employed [to obtain the property of another] which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition. The law does not contemplate the use of criminal process as a means of collecting a debt.” In Beggs “we explained that because of the strong public policy militating against self-help by force or fear, courts will not recognize a good faith defense to the satisfaction of a debt when accomplished by the use of force or fear”; For purposes of extortion “[i]t is immaterial that the money which petitioner sought to obtain through threats may have been justly due him”; “The law of California was established in 1918 that belief that the victim owes a debt is not a defense to the crime of extortion”. Moreover, threats to do the acts that constitute extortion under Penal Code section 519 are extortionate whether or not the victim committed the crime or indiscretion upon which the threat is based and whether or not the person making the threat could have reported the victim to the authorities or arrested the victim. Furthermore, the crime with which the extortionist threatens his or her victim need not be a specific crime. “[T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect him in the event of the failure to accomplish his extortion and of a prosecution for his attempted crime.” Attorneys are not exempt from these principles in their professional conduct. Indeed, the Rules of Professional Conduct specifically prohibit attorneys from “threaten[ing] to present criminal, administration, or disciplinary charges to obtain an advantage in a civil dispute.” (Cal. Rules of Prof. Conduct, rule 5–100(A).) In Libarian v. State Bar we upheld disciplinary action against Librarian who, after losing at trial, sent a letter to opposing counsel, accusing his opponent's client of perjury and threatening to use the perjury charge as the basis of a new trial motion and a criminal complaint unless opposing counsel's client paid Librarian's client. “Although no action was taken either by Librarian or Siegel to prosecute Nadel, the record clearly shows conduct which is in violation of Librarian's oath and duties as an attorney. The threats contained in the letter indicate an attempt to commit extortion. The sending of a threatening letter with intent to extort money is ‘punishable in the same manner as if such money ... were actually obtained’ (Pen.Code, § 523) and the crime of extortion involves moral turpitude.” The conduct of an attorney who threatened an oil company with reporting adulteration of its gasoline to the prosecutor unless it paid his clients was not only grounds for disbarment but “constituted an attempt to extort money as said crime is defined in sections 518, 519 and 524 of the Penal Code”; attorney's suggestion in letter demanding $175,000 settlement in divorce case that he might advise his client to report husband to Internal Revenue Service and United States Custom Service constituted “veiled threats [that] exceeded the limits of respondent's representation of his client in the divorce action” and supported attorney's extortion conviction]. As these cases illustrate, a threat that constitutes criminal extortion is not cleansed of its illegality merely because it is laundered by transmission through the offices of an attorney. Bearing these principles in mind, we turn to the instant case. Flatley v. Mauro, 139 P.3d 2, 15–21 (Cal. 2006). | No. Causing someone "pain and suffering" is not against the law; it is merely one kind of damages that can be awarded when someone has done something that is against the law. You may, for instance, endure pain and suffering from a car accident or shooting, in which case you could collect damages for your pain and suffering after proving that the other party committed the torts of negligence or battery, which are illegal. But if you were enduring pain and suffering from the last episode of Lost, you could not collect damages for your pain and suffering because it is not against the law to write a crappy finale. So in your case, cannot sue for pain and suffering based simply on the existence of a secret audio recording. North Carolina allows secret audio recordings, and it does not make exceptions for audio recordings that hurt someone's feelings. But to go beyond your explicit question, there still remains the possibility that you could pursue a legal action. If the other party used that recording in a way that violated the law, that might give rise to a tort that would support an award of damages for pain and suffering. If they publicly distributed a recording of themselves having sex with someone, that might constitute the tort of public disclosure of private facts. If they edited the recording to make it sound like someone had said something that they had not and then gave it to someone else, that might be grounds for a libel action. | Disclosure to police of an illegal recording is permitted by s. 193(2)(e), and in court by s. 193(2)(a). The recording could be excluded if the person who made the recording did so on behalf of police (to sidestep their obligation to obtain a warrant), but even then its importance as evidence may outweigh other Charter considerations. | Probably not, although it is impossible to say without reading the lease. Usually leases are monthly. That means you pay for the entire month or lease term regardless of how much or how little you use the property. It seems weird that the lease ends on the 21st, but if that is the case, then you are legally obligated to pay for that time interval. That said, if you want to drive a hard bargain, you could threaten to reoccupy the apartment and stay in it until the 21st which are legally entitled to do, unless he refunds you some money. You would have to be a pretty serious hard-ass to pull this off, or be prepared to go to court. One possible course of action is that you demand return of the key and say you changed your mind and will be staying in the apartment until the 21st. Make sure the conversation is recorded and that he knows the conversation is recorded, or have a witness. He will refuse. You can then sue him for denying you the use of your property. | A receipt is just a written proof that money was taken. It is hard to imagine a place on Earth where the legality of giving such a proof would be questionable at all so that you would need to talk about an "authority to issue receipts". Only if you find a place where money itself is illegal. Now, the real question here is whether such receipts (issued by private persons not registered as businesses) can be used for accounting purposes, e.g. to claim that your business, which transacted with those persons, incurred expenses. The mere fact that sole traders need to be registered to do business does not outlaw the use of receipts issued by non-registered persons. For example, your business could be buying old stuff from the public (used cars, electronics etc.) and refurbishing it. Provided that this activity itself is not illegal, receiving receipts from those one-off private sellers, and using them in your bookkeeping would be perfectly legal too. | Yes, but ... It doesn’t protect you. Let’s imagine you put such a clause in and a person in Europe used your service notwithstanding: they’ve broken the contract but you’ve broken the law. You get the fine and they get ... nothing. Because you can’t contract outside the law you never had a valid contract with them so you have no basis to sue. Further, because you are purporting to something you can’t legally do, you are probably on the wrong side of misleading and deceptive consumer protection law: which is another fine. If you can ensure that you don’t breach local law - like by not operating over the internet - then you can choose not to deal with e.g. Europeans. If you can’t guarantee that, then you’re stuffed. | It's not a crime per se, but you're breaching contract if you're accessing it by normal means, that is, through a Web browser or through the API. Youtube Terms of Use 5B, emphasis added: Content is provided to you AS IS. You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, make available online or electronically transmit, publish, adapt, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content. It is a breach of the Terms, which you agree to and are contractually bound by, to download Content unless Youtube allows it. Because Users license, the Content to Youtube, Youtube is entitled to recover loss of income from your breach of contract, including loss of advertising revenue, and possibly even punitive damages. Legally, whether you can download it depends on the jurisdiction. It is generally acceptable to make a copy of media you purchase, however these rights do not generally extend to media purchased online, where you become bound by the terms of the service provider - in this case, Youtube. The owner of the Content retains ownership rights and licenses derivation, reproduction and distribution rights to Youtube. That is, if the content owner made it available on some other website for viewing, then you would have the rights to download it for the purposes of viewing it. However, you would still not have distribution, adaptation or modification rights unless they were assigned to you by the content owner. You may have a a Fair Use/Dealing defense for the content, depending on the purpose and nature of your usage. 17 U.S.C. § 107 outlines the considerations in a US Fair Use defense, which essentially boils down to: Nature and purpose of the use Nature of the copyrighted work Amount of the copyrighted work used The effect of the use on the value of the copyrighted work In the absence of case law to the contrary¹, the Terms of Use, copyright law, and fair use law are only legal principles we can rely upon in determining the legality of downloading content from Youtube. 1. It's possible that there is case law, but I've just spent a bit of time searching and haven't found any cases where end users were sued for downloading content. | It's really the other way around: film crews can legally travel with the police. This is very similar or identical to what you saw on YouTube. From http://blogs.findlaw.com/celebrity_justice/2014/04/cops-and-suspects-rights-whatcha-gonna-do-when-they-record-you.html (dated 4/18/2014) "Cops" will soon begin a 10-week filming stretch in San Jose, California, for the first time in the show's 26-year history, reports the San Jose Mercury News. The "Cops" crew will hit the streets alongside San Jose's finest to provide a window into what these men and women do in America's 10th largest city. More from that link: When the officers on "Cops" arrest most of their suspects, the circumstances leading up to the arrest are out in public. However, in order to avoid unlawfully appropriating the images of those caught on "Cops'" cameras, the crew asks the arrestees to sign a release form. The "news crew" are producers who have permission from the police to follow along. As above, they ask each suspect to sign a release after the arrest. These arrests take place in public, on public streets and right-aways, where filming of the public is legal. If the arrestee does not sign the release, their face is blurred in the resulting footage that is made public. This does not mean the producers or videographers are automatically allowed into a private residence. They need a release to go onto private property (unlike the police involved in an investigation) and as such, the resident can actually forbid the cameramen from entering the house even while the police have entered. The footage from the body cams of the police are a different story; they are public employees of the local government and are bound by the laws of the locality. A search of Google News shows that in San Fransisco, the issues of the use of body cams by police and public access to that video is an ongoing issue; some laws have been finalized, others are bound to change. Around the US, some localities at this point in time allow public access to the footage from police cams; others only after department or local governmental review; still others only on in as need basis for prosecutions. ...the cop is the only one in this situation who can command the filmers to stop. Even if the "news crew" is not a news crew and just someone from the general public, it is generally legal for the public to film the police, as long as they are not causing issues with the police and stay out of the way (re: all of the recent news regarding police shootings and the footage available on YouTube and in news sources). There is case law pertaining to that, but IANAL, so I'll let someone else outline that. But https://photographyisnotacrime.com/ is a good resource. In the US, you pretty much have no expectation of privacy while in public. |
Class notes -- who owns the copyright: student or teacher? This question is basically just curiosity, no actual dispute. But a few years ago I scanned and uploaded http://www.forkosh.com/u715.html to my site, personally claiming copyright (see notice on that page) just so somebody would be asserting copyright. Then I pretty much forgot about the whole thing. But a few months ago, I coincidentally received two unrelated emails from fellow former (but >>much<< more recent:) students, both thanking me for putting my detailed notes online. That prompted me to google the teacher, and surprisingly finding him still at CCNY. So I emailed him, forwarding both emails I'd received, and pointing him to my online notes in case they were actually still of any use. That started a five-or-six email exchange, during which I mentioned my copyright statement, explaining why I'd claimed it, and offering to transfer it to him, since I considered it his material, with me just the "scribe". But he never mentioned it, one way or the other, so I just left the copyright statement as-is. But my curious question -- suppose there were a dispute. Who prevails, and why? | The copyright owner is whoever first put the material in fixed form. It is most likely that that is the note-taker (you). It is possible (and highly unlikely) that the lecturer read (had memorized) a prepared script and you copied that script mechanically, and if that were the case, he would hold copyright and you infringed by making a copy. Typically, a note-taker follows the logic of a lecture and expresses those ideas in his own words (the notes do not match a plausible verbatim class lecture). Since expression is protected and ideas are not, that makes it most likely that you would prevail in a suit. The equations are almost certainly not protected. | It should not surprise you that copyright protects the right to (among other things) make copies. There are limited exceptions that are considered "fair use", like if you reproduce a limited amount of text for educational, reporting, or review purposes. Giving your friend a copy of a large portion of the text just because they want it would almost certainly violate copyright. Whether the book is available or out-of-print has absolutely no bearing whatsoever on who holds the copyright or whether your actions violate it. This is very different from giving your friend the book itself. The book itself is covered under the "first sale doctrine", meaning that by buying a copy of the book, you buy the right to sell, transfer, or dispose of that particular copy, but it doesn't give you the right to make more copies. I will note that in practice, it is vanishingly unlikely that the copyright holder would ever learn of your isolated instance of limited infringement in the first place (especially since it's out of print), much less bring legal action against you for making a single copy that did not affect their bottom line. | Under United States law, copyright is normally held by the creator of a work. There is one major exception to this rule: the "work for hire." If something is considered a "work for hire" under the copyright statutes, the copyright is held by the employer. Whether something qualifies as a work for hire is a complex analysis: here is a Copyright Office circular covering some of the basics. To be clear, I'm not giving an opinion (and I don't have enough information to give an opinion) on whether any specific works you or your fiance may create or commission qualify as "works for hire." It's a narrower test than you probably think it is. If the work is not a work for hire, the copyright holder owns the copyright, and anyone else can use it only with a license from the copyright holder. A license can be implied by the parties' behavior and communications--but it shouldn't be. If you're in a situation where you need to know, for example: That you are allowed to use the artwork forever, and the artist can't ask you to stop later; That you are allowed to change the artwork if you need to, even a simple change like cropping or adding a filter or text; or That, if your product is successful, the artist won't be able to sell another license to someone else to compete with you; then you need a written contract spelling out who owns the copyright and what the rights of the other party are. A lawyer can draw up a simple, re-usable form contract for you cheaply that will prevent the problems you're worried about. Remember: even if this is a work-for-hire situation, if you need to prove that down the road, it may require a trial, or at least preliminary motion practice, to do so. That's a lot more expensive than getting your ducks in a row now will be. tl;dr: Get a lawyer. If you're in a major city, there may be a local arts law organization that will provide you with free help for a simple job like this one. (Volunteer Lawyers for the Arts operate in several East Coast cities, and I know many top commercial lawyers who do pro bono for them). | At least in the United States (and I'm pretty sure this is true around the world), facts and information cannot be copyrighted. Just because a work is copyrighted, doesn't mean every part of that work is copyrighted, and factual information conveyed by the work is a part which is not subject to copyright. Copyright on a collection of facts is limited to the selection and arrangement of those facts, and only if that selection and arrangement has some bare minimum amount of originality. See Feist v. Rural, 499 U.S. 340. In this case, it looks at first glance like the person who made that site made their own selection of which materials and which sources would be included; the one place where they really seem to have copied their selection is from glass catalogs with datasheets from specific manufacturers, who would have a hard time arguing that "everything we manufacture in this widely-recognized class of substances" is an original selection. What the author of the website has done is relinquish his rights in his selection and arrangement of the data. In some places, there are other rights besides copyright that do apply to databases; for instance, the EU recognizes database rights to protect significant investment in compiling a database of stuff. But the US does not have that concept. For citing stuff, that's not really a legal question, and has more to do with academic standards. Ask your adviser or teacher if you have one. | Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law. | You seem to assume that copyrights require paperwork such as registration. This is wrong, copyright is automatic. And it prevents the downloader from making the sort of change that you suggest. In fact, it prevents the downloader from using your template at all. The only reason the downloader can use that template is because you've granted him a specific license to ignore some copyright rules, but the default remains. And you did not grant the right to alter the template to free users. | No, it's still copyright infringement. When you modify a copyrighted work in any way, you generate a derivative work which you are not allowed to distribute without the permission of the original copyright holder. | Court filings are, in general, matters of public record. This does not automatically put them into the public domain. This will mean that, absent a special order of the court, anyone will be able to read this filing as pert of the court records. Many courts now make all or parts of their records available on the web. But the copyright holders will possibly retain their rights to authorize the making of further copies, and surely retain the right to authorize the making of derivative works, and their other rights that are part of the copyright bundle, such as the rights of public performance. These rights would not be retained if the work had been placed in the public domain. |
What actual speed limit applies if a temporary low speed sign is placed on only a high speed express lane? Suppose the express lane on a freeway has a 30 miles per hour work zone sign. After this sign, the entire freeway's speed limit is 85 miles per hour. What is the exact speed limit for the road if the low speed limit is only on the express lane? | If the speed limit is only on a express lane in a freeway, it means the cars in the express lane on the freeway must be slowed down to 30 miles per hour or slower, but the cars in the other lane (the collector lane) in the freeway must be 85 miles per hour or slower. If after the speed limit on the express lane there is a 85 miles per hour speed limit on the express lane, the cars in the express lane must be 85 miles per hour or slower after the work zone speed limit. If not, then all cars in the express lane only can be 30 miles per hour or slower than 30 miles per hour. | This varies depending on the specific law of the state or locality involved. In New York, the word "POSTED", along with the name and address of the owner is sufficient to notify people not to intrude, and anyone ignoring such a sign is technically trespassing (although, in practice, if such a person leaves the property when asked, did no damage, and appeared honestly ignorant, it is likely that no legal action would be taken). In California, as specified by penal code section 553 (quoted in the linked answer) a sign for this purpose must include: the words “trespassing-loitering forbidden by law,” or words describing the use of the property followed by the words “no trespassing.” in letters at least two inches tall, and follow other specifications in the law. The word "Posted" is neither required nor sufficient, although the law calls land with such signs "posted property". | My story: UK passport holder, resident in Switzerland, driving from Houston to San Antonio and stopped doing 105mph in a 60mph section of highway. I was given the citation and instructions, etc., but told the officer I was leaving in 2 days and may not be able to tend to it in time. On my return to Switzerland, I called the court and asked how I could pay. I was told I could get a money order from the post office, to which I replied, "Really, the Swiss Post office will issue U.S. money orders?" After a further 15 minutes of conversation about how I was willing but unable to pay, the officer said, "Well, I guess that we ain't commin' to Switzerland to get you so just ignore it!" I asked if I could have that in writing and he asked me to write to the court and explain my situation. 3 weeks later and I received a reply saying all was forgiven and I should have no problem re-entering the U.S. or the State of Texas. So my advice would be to call them, and act willing to pay. Things may have changed and you may be able to pay with a credit card, but if you act willing and they are unable to accept your payment, then as long as you have a paper trail, you should be fine. I have entered the U.S. dozens of times since and have even sponsored visas for others. | I know this is not the answer you want to hear but your situation of having to merge into another lane due to a lane closure is not exceptional. You need to merge so you must ensure that there is enough room in the other lane to do so safely. I looked at several sections of the California DMV Driver Handbook. The other driver could be considered an aggressive driver. The DMV says to avoid; let them pass, etc. The Handbook does suggest that a driver let others merge when possible, but it's not a requirement (page 84). This is similar to merging onto a freeway. The freeway traffic has the right-of-way. While the DMV suggests that a driver already on the freeway should speed up or slow down to help traffic that's trying to merge onto the freeway, it's not a requirement. | It would not be valid in California. see California Labor Code § 2870(a). This will be state-specific and complicated. | California Vehicle Code chapter 11, division 7, article 1, section 22350: No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. Section 22358.5: It is the intent of the Legislature that physical conditions such as width, curvature, grade and surface conditions, or any other condition readily apparent to a driver, in the absence of other factors, would not require special downward speed zoning, as the basic rule of section 22350 is sufficient regulation as to such conditions. Without knowing exactly what questions the officer was asked, it's impossible to know why you were ticketed and why you were found guilty, but "reasonable or prudent" and "endangers the safety of [others]" covers a great deal of ground. | The ordinance is not very specific about how notice is to be given: therefore, it need not be in writing, and it need not be sent by mail. It would not be surprising if the "notification" came in the form of a city person inspecting the reported obstruction, walking up to the house and knocking and finding nobody home (thus triggering the "In case the owner cannot be found" condition), whereupon the city removes the rocks. That clause does not mean "In case we do not know who the owner is", it almost certainly means "in case the owner cannot be contacted immediately". Article III is in general about obstructions on streets, which are not allowed, except by permit in section 78 under "Permit to Obstruct Traffic Lane". Assuming that no obstruction permit was obtained, what usually happens is that an officer is sent to tell the owner to remove the obstruction (more or less immediately), and if nobody is at the site whom they can tell, they probably won't go any further (e.g. asking neighbors where the owner is). There is no legal definition of "reasonable time", instead the law simply takes that to mean "the amount of time a reasonable person would require". It would thus depend particularly on the size of the obstruction and the volume of traffic. One measure would be how quickly the rocks were moved -- if it was a matter of days and there was no notice, written or otherwise, then there would not be the kind of urgency that might justify the "We knocked and nobody was home" version of notification. | You (probably) did not commit a crime in Colorado. The answer to your question though is probably Driving an unsafe vehicle Colorado Revised Statutes Title 42. Vehicles and Traffic § 42-4-202 (1) It is unlawful for any person to drive...on any highway any vehicle...which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this section and sections... The above is not a crime , it is (5) Any person who violates any provision of this section commits a class A traffic infraction. A class A traffic infraction is a civil violation. Note that some driving offenses are crimes: In Colorado, driving more than 25 mph over the posted limit is a class 2 misdemeanor, and doing so in a constriction zone is a class 1 misdemeanor. Also note that I say probably because it is possible that they charged you with something more extreme- reckless driving? violation of noise or pollution ordinances?- but for a fine small enough that you don't say, 2 points, and you did not have to go to court (you could have if you wanted for the ticket, but not required) it is very unlikely. |
Dirty Apartment 3 day notice to cure breach or quit San Diego, CA I received a "Three Day notice to cure breach or quit" for a dirty apartment. It is dated Wednesday, but was left on my door Thursday at 9am. The landlord is coming over on Saturday before noon to inspect. Not only is this not enough time, but I read that weekends don't count and this inspection should be carried out Monday. In addition to this, what they wanted clean was very vague. I have lived here for seven years, and maintenance has upgraded/been over at least once a year. The cleanliness of my household hasn't changed at all in the past 7 years(and it is the same guy doing maintenance), so I am confused. The document said a picture of my dirty apartment(what they wanted clean) was attached, but it was not. When I brought this up to my landlord over the phone asking for clarification, she dismissed this point and said the bathroom needed to be cleaned along with the rest of the apartment. Can they legally take pictures of the inside of my home while performing requested maintenance? I spent all day cleaning and do not want to argue with my landlord, but if she chooses to evict me, are there any legal actions I can take? | http://www.tenantslegalcenter.com/html/eviction_notices.html 3 DAY NOTICE TO CURE BREACH (sometimes called PERFORM COVENANT) OR QUIT is used to notify a tenant that he/she has 3 days to do or stop doing something as per the rental agreement or the law. The tenant can comply with the notice or vacate within the 3 days. If the tenant vacates within the 3 days, he/she is NOT relieved from the rent obligation under the lease or rental agreement. So, the notice must be based on a law and/or the lease agreement. Presumably, the law and/or lease provision must be cited in the notice. The City of San Diego has a GOOD CAUSE law (Right to Know Ordinance) protecting certain tenants in a residential tenancy of at least TWO years and that good cause must be written in the notice. You state that you've been there seven years, so this law applies. To count the days of a notice, you begin on the next day after service as the first day. Weekends and holidays are counted but the last day of a notice to act generally may not land on a weekend or holiday. If it does, and if applicable to that notice, the "last day" can carry over to the next business day. For example, if a 3 day notice to pay rent is served on a Thursday, we count Friday as the first day Sunday is the third day. Since the last day of this type of notice cannot be a Sunday, the "third day" is then Monday (giving the tenant four days instead of three) to pay the rent. If that Monday was a legal holiday, then Tuesday would then be the "third" day (giving the tenant five days instead of three) to pay the rent. http://www.rogerfranklin.org/Instructions_for_Landlords_2017.pdf B. SERVE THE THREE-DAY NOTICE 1. After the Three-Day Notice has been filled out and signed, you must serve it on the tenant. The Three-Day Notice may be served either: (a) By delivering a copy to the tenant personally, or (b) If the tenant is absent from is place of residence and from his usual place of business, by leaving a copy with some person over the age of eighteen (18) years at either place, AND mailing a copy of the Three-Day Notice addressed to the tenant, postage prepaid, first-class mail, to his place of residence; or (c) If such place of residence and business cannot be ascertained and a person over the age of eighteen cannot be found at the tenant’s residence, then by affixing a copy of the Three-Day Notice in a conspicuous place on the property, AND mailing a copy of the Three Day Notice to the tenant at his residence. So if the notice was just left at your apartment, and was not delivered personally or mailed, then the service is invalid. | Just think of the subtenant cum owner as two separate people with two separate roles. Tenant = T Subtenant = ST Old owner = OO New Owner = NO The rights of the tenant vis-avis the new owner will be informed by the lease and the local laws. Generally, if the sale happens in the middle of the existing lease, the NO is obligated by the terms, as is the T. NO cannot just kick T out, and T cannot just break the lease. The lease may say what could happen and local laws will apply. Likewise, ST has whatever contract with T that previously existed. Pretend NO and ST are different people. If T owes NO $1000 per month, and ST owes T $400 a month, that continues even though ST and NO are the same person. Depends on what kind of dispute. See above. All contracts continue, subject to whatever the lease with the original owner and the subtenancy agreement say abut modifying or breaking the lease and sublease. Local laws apply. Note, if the subtenancy was "off the books" or was done when not allowed by the original owner, and if it was not in a place that the local law says owners cannot deny subleasing, then tenant might not have any protection. ST, now that he is owner could just move out and stop paying. On the other hand, even if he is the owner, he cannot just say "I am the owner now, so I am moving back in for free" because the original lease gave the tenant use of the whole property. But ST could just drop out because T always owed OO, and now NO, the full rent. Do you mean if rather than sublease, they were both on the original lease? Interesting, but just imagine it as the obligations before the sale = the obligations after the sale. I don't know though. There are some tax implications for an owner occupied rental. | I assume you are already living there? No, you can't use that clause, specifically because the "previous renter" is the person(s) who occupied the apartment prior to your moving in (the "start date", or the first date that your lease is valid). That clause doesn't allow you to break the lease if one of the current renters vacates the apartment and leaves their stuff. This only means that if the apartment was not ready for you to occupy due to the previous tenant not vacating, that you are allowed to walk away from the lease without any payments (other than a credit verification fee). This pretty much requires you to not "move in" in the first place. If you've already moved in, you don't have a legal leg to stand on since you deemed the property fit to move in (and should have done a walk-through prior to accepting the condition of the apartment). If this is you "getting on" the lease, and the lease specifically says that you are being added and your "start date" is some date in the future that you intend to move in, you may have a leg to stand on since this is more like sub-letting individual rooms with a common area. It isn't clear to me if this is the case for you. Once the other person is off the lease they have basically abandoned their property and you may be able to dispose of it, or have the leasing company dispose of it. | By default, the tenant is liable for all rent until the end of the lease. E.g. if neither the tenant nor the landlord can find a suitable and credit-worthy replacement tenant (e.g. if the market has crashed), then the whole lease must still be accounted for by the original tenant, and the lost "rent" becomes "damages". However, there is also a concept of damage mitigation, and California Civil Code 1951.2 explicitly defines that it's the landlord's duty to mitigate damages. This means that the landlord cannot simply sit still and collect the rent on an empty apartment. Because of this, some smaller landlords in California outright have a policy that you can cleanly break the lease by paying for 2 months of rent as a penalty. (It appears that a good summary of various examples about landlord/tenant damage mitigation is available at UniformLaws.org.) However, when it comes down specifically to the SF Bay Area with the ever increasing rents and the lowest residential vacancy rates in the nation, and also especially with the corporate landlords that already have sufficient resources in place to readily advertise and promote an abandoned unit, it can probably be argued that, in practicality, requesting more than one month of rent (in damages) as a penalty for breaking the lease is simply unreasonable. | If the landlord has a right to charge a late fee (and that late fee is not a penalty) then that right accrues from the instant that the rent is late i.e. any time after 5:00:00 pm precisely if that is the time stated in the lease. If only a day is stated then it would be midnight. For case law on the penalty doctrine see PACIOCCO & ANOR v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED [2016] HCA 28 which involved a challenge to a bank charging late payment fees on credit cards. | I have read that Assured Shorthold Tenancies of less than 6 months are allowed, but you are not allowed to evict a tenant before 6 months. That applies only to section 21 ("no fault") evictions. Specifically, according to section 21 of the Housing Act 1988, a notice can't be served in the first 4 months of a tenancy (section 21(4B)), and can't take effect in the first 6 months (section 21(5)). Section 8 evictions, which require one or more of the reasons listed in Schedule 2 of the Act, do not have this restriction - though only some of them can be used during the fixed term part of the tenancy, and they must be listed in the tenancy agreement in order to be used in that way. Will I have to wait until he has actually left before I can arrange an AST with new tenants? Yes, but that's always true. It's very unwise for a new tenancy agreement to be signed until the previous tenants have moved out, because if they don't leave before the new agreement takes effect, the landlord is now committed to finding accommodation for the new tenants. This is why tenancy agreements are often only signed on the first day of the tenancy. | Short answer: Yes, you can get out. However, this will be harder than you may want it to be. You will need to check your lease agreement for an arbitration clause. If the lease mentions disagreements will be handled by arbitration (or an arbiter), you need to know that going into this. Arbitration clauses usually stipulate that the landlord picks the arbiter, who will almost always be predisposed to side with the landlord. This pamphlet sheds insight into the situation. Skip down to PDF page 22, section header "My neighbors are constantly playing loud music..." Summarized, you can get out but if other tenants are not as affected, it will be hard to prove it affects you differently. You do, however, have the benefit of knowing the particular situation is illegal (as compared to the pamphlet's example of playing music, which is only situationally illegal). First, get written, signed testimony from other tenants (your roommate, the one above the smoker, etc). Preferably, get these signatures notarized. The testimony should include an acknowledgement that the signer has smelled the marijuana and a statement about how often this occurs, along with the date of signature. Next, send a certified letter to your landlord. Keep a copy of this letter. In it, state your intention to move unless they fix the situation within thirty (30) days. Remind them you already have informed them of this situation. Inform them you have (hopefully notarized) testimony of the marijuana smoking from other tenants, remind them that this is illegal, and that this is affecting your health. You may also warn them that if they do not rectify the situation and you leave after thirty days, they cannot keep your deposit or charge you a termination fee- they have breached your lease contract through failure to maintain a safe and livable rental unit (a gentle reminder that you will seek legal action if they attempt to keep your deposit or charge you fees is appropriate). In the letter, request an immediate, written response with their intentions on the matter, and give a deadline (like 3 days from receipt). As a certified letter, you will know when they get it. The wording of this letter is important. You want to clearly state the facts without sounding self-righteous, angry, or vindictive. And proofread the heck out of it. If the landlord is faced with possible legal action for forcing an illegal tenant to follow the law, and certain legal action for trying to keep a legal tenant to remain in illegal, harmful circumstances, they may well decide to oust the smoker. If your scare tactic doesn't work, however, you should make good on the threat- really do leave after thirty days, and if they attempt to charge you for anything or withhold your deposit, you really should contact a lawyer. You should also, however, have the money saved to pay the termination fees, just in case. Because the smoke affects you differently, and there is no easy way to prove this, an unsympathetic court (or arbiter) may rule against you. (NOTE: I am not a lawyer, but I did have to break a lease and spent a good deal of time researching and discussing my situation with a lawyer. In the end I lost my deposit but did not have to pay any fees or missed rent.) | If it were me, I would leave. Who wants to rent a room in a home where you are not wanted? However, there should be concessions. I would ask for 1.5 months rent refunded, but would happily settle for one month. I am sure there are many nice rooms, close by, where you are welcomed. Given additional information commented by the OP, the landlord is looking to increase his rents. Evidentially this municipality has strict rent controls. In this case, I would enter negotiations with the landlord. I would offer him a percentage of his anticipated rent increase and probably start at 50%. If the OP has been a good tenant (always paid on time, and low maintenance) the landlord might see this as a bargain. No need to find a new tenant and no need to vet one that might pay poorly. The better the tenant has been, and the more strict the renter protection laws the more appeal this offer will have to the landlord. The benefit for the OP is they don't have to move, or find a new place with its associated costs and inconvenience. If the landlord is just a mindless corporate drone with no decision making power, this will not work. |
Can a law firm provide additional professional services to clients? In the United States (with the exception of California, since it does not strictly follow the ABA’s Model Rules of Professional Conduct), can a law firm provide additional professional services (bookkeeping/accounting, payroll, HR, etc.) to their clients? If it matters, assume that the law firm is a General Partnership (with both equity and non-equity partners) and all partners are lawyers. If so, could someone be a client of the accounting service without being a legal client? Does the organization of the law firm (General Partnership/Limited Liability Partnership/Professional Corporation/etc.) matter? Would this setup work in California? | The short answer is that yes, this kind of arrangement would be legal if handled properly. Permissible Scope of Business A lawyer is not strictly limited to providing legal advice. Counselor Rule 2.1 Advisor In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation. The official comment to this Rule is also informative: Scope of Advice 1 A client is entitled to straightforward advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. 2 Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied. 3 A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations. [4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts. Offering Advice [5] In general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest. More generally, law firms can indeed provide non-legal services to their clients, even if they aren't providing legal services to that particular client. For example, in New York State, lawyers are ex officio licensed real estate agents for any client (to oversimplify). Law firms in every state routinely provide notary public services for clients and non-clients. Many law firms provide escrow services in transactions where not everyone involved is a client of the firm. And, lawyer have been known to serve as fiduciaries (e.g. executors and trustees) which can involve a wide array of activities, and not infrequently manage real estate for their clients. With suitable qualifications they can provide accounting and securities services. One law firm that I worked at also operated a miniature golf course and a drive by expresso stand as separate profit centers within the firm. The biggest difficulty would be confidentiality. For example, accounting and HR matters can involve a greater obligation to disclose information to third parties than attorneys are allowed to permit for legal clients. The ethical limitations on a lawyer's financial involvements with a client are also more strict than in most other professions which could present a problem when financial guarantees and the advancement of funds are common business practices in some other kinds of businesses. The more common way that these questions present themselves is when a non-legal company starts hiring lawyers. For example, most large accounting firms have lawyers specializing in tax law, securities law, business transactions and tax litigation on staff, and at some point, these in house lawyers are providing services to clients rather than to the accounting firm itself's internal legal needs, so most large accounting firms are firms who have practices that include the practice of law. Similarly, most title companies have lawyers in house who to some extent represent the title company because the title company is insuring its own title opinions, but often these lawyers end up guiding the actions of the title company's clients based upon these lawyers' legal opinions. In general, it is more common for a non-lawyer to back into becoming a law firm than for a law firm to intentionally expand into a non-legal line of business. Practically speaking, it would probably make more sense to set up sister companies that refer clients to each other and operate out of the same location than to operate a single business. Organizational Issues Lawyers may not share profits from a law firm with or be managed in a law firm by non-lawyers (except sharing profits as part of a "profit sharing plan" including non-lawyer employees, with the estate of a deceased lawyer, or with a non-profit referral service). The type of entity doesn't matter much, although many states require law firms that operate in limited liability entities to have professional malpractice insurance, while not requiring that of law firms with unlimited liability entity types (unincorporated sole practitioners and general partnerships). If professional malpractice insurance must be obtained, a broader practice incorporating non-legal fields would probably increase the price of the professional malpractice insurance premium unnecessarily. Rule 5.4 Professional Independence Of A Lawyer (a) A lawyer or law firm shall not share legal fees with a nonlawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons; (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price; (3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. (c) A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. What About California? While California has somewhat different rules of professional conduct (as do a handful of other states), I don't believe that the differences would be material in this context. The limitations of Model Rule 5.4 are found primarily in California Rule 1-310 and 1-320. California has no direct equivalent to Model Rule 2.1, so it doesn't expressly prohibit or allow non-legal activity. This said, California's legal and business culture is quite receptive to alternative business models and is not particularly hidebound by tradition. UPDATE: California is expected to adopt a version of the Model Rules of Professional Conduct imminently (probably in 2017 or early 2018), in which case the citations to rules above will be directly applicable. | This depends very much on the nature of the agreement, and whether it affects the client's rights and obligations. It may also depend on which US state this is in. If the agreement is "We will hold the negotiating meetings at your office instead of mine." the client's rights are not affected and the client probably has no veto. If the agreement is "Yes we will plead guilty to manslaughter." it isn't valid without the client's consent. If the client is giving up any rights or making any significant concessions, then the client's consent is probably required, but I can give no better answer without an indication of the subject of the agreement. | I believe that under federal law, the franchise owner cannot avoid overtime in this way. A similar case was considered by the Labor Department in 2005 (FLSA2005-17NA): This is in response to your request for an opinion concerning the application of the overtime requirements of section 7 of the Fair Labor Standards Act (FLSA) to employees who work at two different health care facilities operated by one management company. It is our opinion that all hours worked at any of the facilities must be combined for the purpose of calculating hours worked under the FLSA. The letter explains the logic pretty clearly, with citations. When an employee is "jointly" employed by two or more employers, then the hours are all combined for overtime purposes. 29 CFR 791.2(b) explains how "jointly" is determined: Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as: (1) Where there is an arrangement between the employers to share the employee's services, as, for example, to interchange employees; or (2) Where one employer is acting directly or indirectly in the interest of the other employer (or employers) in relation to the employee; or (3) Where the employers are not completely disassociated with respect to the employment of a particular employee and may be deemed to share control of the employee, directly or indirectly, by reason of the fact that one employer controls, is controlled by, or is under common control with the other employer. Paragraph (1) applies: the two employers (the two restaurants) have an arrangement to share the employee's services (the owner is explicitly dividing their hours). Paragraph (3) also applies: both employers are under common control, since the same person owns both. They certainly are "not completely dissociated". The same logic would seem to apply even if the two locations are different restaurants, or different types of businesses. The 2005 letter explains further: Factors that are relevant in finding joint employment include, for example, whether there are common officers or directors of the companies; the nature of the common management support provided; whether employees have priority for vacancies at the other companies; whether there are any common insurance, pension or payroll systems; and whether there are any common hiring seniority, recordkeeping or billing systems. These also seem likely to apply in your hypothetical cases. | The reality is that it is almost never an acceptable tactic to use in any jurisdiction where I ever have/or currently do practice. The bar is relatively small no matter where you are; even in bigger cities. Your reputation is your most valuable asset and it would be crippled if this became your M.O., or was used in anything but the most rare and egregious situations (e.g. withholding evidence, lying to the judge, tampering with jury). Small violations (which are seemingly big in the heat of trial) happen every day and if you even suggested this it would come back on you more times than not. This is exponentially true in the criminal arena where the Judges and prosecutors interact on a daily basis and have formed collegial relationships. If you practice criminal law you often need to form good working relationships with the ADAs or AAGs since most cases get disposed of through negotiations with these very individuals. I have been in situations where my colleagues and I discussed it, opined on how it would be appropriate, but in the end have never gone that far. One time things were so bad with opposing counsel on so many levels, I considered it; however, I was a newish lawyer and my mentor at the time told me that he had never seen anyone but a federal court judge issue a sanction and aside from that, had never even seen it requested by a lawyer in the local bar. And these were horribly bad violations of the rules of procedure, conduct unbecoming, etc. So, I would suggest avoiding this practice. My rule of thumb is that unless the offending practice is so egregious that one would be technically duty bound to report the conduct to the bar, it is not appropriate to ask for sanctions. | Basically, the privilege does apply to other members of the firm including non-lawyer staff, although the analysis that gets you there can be a bit involved in some cases. The Duty of Confidentiality As @DavidSiegel notes, there is a distinction between the duty to not reveal client secrets subject to certain exceptions, that in all U.S. jurisdictions arises primarily under Rule of Professional Conduct 1.6, Rule 5.1 regarding partners and supervisory lawyers in law firms, Rule 5.2 regarding subordinate lawyers in law firms, and Rule 5.3 governing how the rules apply to non-lawyer assistants in a firm. The Attorney-Client Privilege There is a separate body of law that heavily overlaps that governs the attorney-client privilege which is the right to refuse to disclose confidential information of a client to third-parties even in the face of a court order of subpoena that would otherwise compel someone legally to disclose information. The attorney-client privilege has a couple of components. One is the privilege for confidential communications between a lawyer and a client (which extends to disclosures to other attorneys and staff in the firm with a need to know and people with whom there are joint defense agreements) and the other is the work product privilege which protects work done for a client by a lawyer or the lawyer's law firm in the course of a legal representation of the client (which is almost as strong but has some narrow exceptions that don't apply to the confidential communications privilege). The work product privilege, like the confidential communications privilege, is not waived or impaired because attorney work product (or attorney staff work product) is shared within lawyers and legal staff in a law firm as necessary to represent a client. An attorney-client relationship that gives rise to the privilege extends directly from the client to every lawyer in a law firm that works on their case in any way, or is made privy to the attorney-client privileged material regarding the client in any way. In Colorado, where I primarily practice (which is entirely typical in this regard), this is mostly codified by statute in Colorado Revised Statute § 13-90-107(1)(b) (at pdf page 544) which expressly extends its protections to legal staff by stating: An attorney shall not be examined without the consent of his client as to any communication made by the client to him or his advice given thereon in the course of professional employment; nor shall an attorney's secretary, paralegal, legal assistant, stenographer, or clerk be examined without the consent of his employer concerning any fact, the knowledge of which he has acquired in such capacity. There is also a great deal of case law interpreting this statute. The case law establishes, for example, that the privilege belongs to the client and not the attorney or the employees of the attorney. In federal courts when dealing with questions of federal law, the attorney-client privilege is governed not mostly by state statutes and case law but by the federal common law authorized and developed under Federal Rule of Evidence 501 and Federal Rule of Evidence 502. FRE 501 states: Rule 501. Privilege in General The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statute; or rules prescribed by the Supreme Court. But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. FRE 502 states: Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection. (a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if: (1) the waiver is intentional; (2) the disclosed and undisclosed communications or information concern the same subject matter; and (3) they ought in fairness to be considered together. (b) Inadvertent Disclosure. When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B). (c) Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure: (1) would not be a waiver under this rule if it had been made in a federal proceeding; or (2) is not a waiver under the law of the state where the disclosure occurred. (d) Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding. (e) Controlling Effect of a Party Agreement. An agreement on the effect of disclosure in a federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order. (f) Controlling Effect of this Rule. Notwithstanding Rules 101 and 1101, this rule applies to state proceedings and to federal court-annexed and federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if state law provides the rule of decision. (g) Definitions. In this rule: (1) “attorney-client privilege” means the protection that applicable law provides for confidential attorney-client communications; and (2) “work-product protection” means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial. | There are certain legal arrangements that are implied in law when a project or activity is carried out without forming a legal entity. The classification of the legal arrangements in question govern the legal rights of the parties. These arrangements are surveyed below. This is followed by a brief list, for contrast and completeness, of the main different kinds of entities that must be formed expressly and registered to come into existence. This overview is then applied to the specific questions asked. One is a trust. A trust arises by operation of law when a person (called a settlor) provides money or other property or legal rights to another person (the trustee) for the benefit of one or more persons (people who are called beneficiaries) and often for some purpose specified by the settlor. In the U.S. this was historically governed by case law from both courts of law and courts of equity. The concept of a trust and the broader concept of a fiduciary as a general concept are particular to common law systems and don't have a direct analog in civil law legal systems, although there are legal arrangements in civil law countries that have material differences from common law trusts that can be used in circumstances where trusts are used in common law countries. But, now, many states have adopted a statutory trust code that covers most issues of trust law fairly comprehensively. Guardians, conservators, and receivers, sometimes with rights arising by operation of law, or a private non-governmental appointment, but more often arising from a court order, are close cousins of trustees of trusts. Trustees, guardians, conservators, receivers, and agents are part of a group of kinds of people who are often collectively grouped in a larger category of people in charge of other people's property or rights called "fiduciaries." Most often, the enterprises and properties managed by fiduciaries are not considered to be entities, even though the arrangement is similar to an entity. Some jurisdictions require some kinds of fiduciaries to file some sort of registrations or public filings, but these statutes typical regulate people who are already fiduciaries by operation of law or a court order, rather than requiring registration for the legal arrangement to come into existence. A related form of entity, which requires government registration as an entity in some jurisdictions, and can be formed without registration or similar formalities in others, is a business trust which will often have transferrable beneficial interests, the most common examples of which is a real estate investment trust (REIT) or a mutual fund, both of which are sometimes, but not always, organized as business trusts. Most businesses organized as business trusts are subject to considerable government regulation as securities and under tax law, and also under other laws specific to those entity forms. Another related concept in common law countries is a "bailment" (holding the property of another for safekeeping) by a bailee for a bailor and an escrow arrangement. France has a similar set of concepts in its civil code translated into English as "deposits" meaning "bailments" and "sequestrations" meaning escrow arrangements and similar relationships in Articles 1915 to 1963 of its Civil Code. Another is a general partnership. A general partnership arises by operation of law when two or more people jointly carry on business for the purpose of making a profit (whether or not they actually do), without forming some other entity. There is a uniform state law adopted in every state in some version or another, with minor state-specific variations, that governs general partnerships. A joint venture is almost indistinguishable from a general partnership. While codified now, in common law countries, general partnership law is a natural and organic outgrowth of the laws of trusts, fiduciaries and agency, that has evolved and been modified in the process of codification; while in civil law countries, general partnerships are just another kind of entity that isn't necessarily registered as an entity per se (although civil law countries generally have a category of registration-like regulation and accounting and banking rules that apply to all "merchants" whether or not they operate through entities). A third is an unincorporated association. An unincorporated association arises by operation of law when two or more people jointly carry on an activity for purposes other than making a profit, without forming some other entity. In some jurisdictions this is governed by a statute pertaining to them, while in others (and in part, even in states that have a statute) it is governed by common-law case law (drawn historically from both courts of law and courts of equity). In France, the civil code provides for a similar kind of unregistered entity known in English translation as a "Partnership for Non-Commercial Purposes" in Articles 1845 to 1870 of its civil code. A fourth and related notion, which is somewhere between an unincorporated association and a simple contract – which is not a general partnership because it is not carried out for profit – is a domestic partnership or civil union which is sometimes just a subcategory of contract, but in other cases is treated as a special kind of arrangement subject to case law or statutory regulation. Many state and local governments, and some national governments outside the United States, adopted domestic partnership and/or civil union laws that vary widely in their details, before same sex marriage became legal in the United States, to address the needs of same sex couples and/or unmarried opposite sex cohabitants and/or domestic arrangements involving more than two people. Along the same lines, while all countries allow qualified opposite sex couples and sometimes qualified same sex adult couples to form a marriage with a license from the government or government registration, some jurisdictions recognize marriage-like relationships that can be formed without government registration such as common law marriage, putative marriage, and de facto relationships that have legal rights associated with them. France, for example, in Article 515 of its civil code, has "civil covenants of solidarity" (PACS) akin to a civil union in the U.S. which must be formally registered giving rise to formal rights that are significant but less so than those created by marriage. French civil code Article 515 also defines a different category of relationship translated as "concubinage", which is roughly equivalent to "cohabitation" in English which gives rise only to very limited legal rights, and may be (but need not be) governed by a custom drafted domestic partnership agreement called a "convention de concubinage" in French and can, but need not be, formally recognized in a "certificat de concubinage" or a "declaration sur l'honneur" which has only slight legal effect. The law of a "convention de concubinage" is somewhat akin to the kind of contract contemplated in the OP as it is an "atypical" contract that is not heavily regulated and not entered into primarily for the purpose of making a profit. A fifth is a contract. Sometimes a legal arrangement is contractually entered into and has the character of assigning people legal rights and obligations vis-a-vis each other without constituting an unincorporated entity or trust. A contract would typically involve less discretion than an unincorporated entity or a trust, although this isn't a hard and fast rule. In some respects, all entities are basically standardized and regulated contracts. Often, but not always, contractual rights are assignable. Corporations have their roots in the laws of trusts, contracts, and general partnerships, and eventually were given a statutory treatment not directly derived from those sources. This is governed mostly by case law. One kind of contract that bears similarity to what you describe in your example is called in economics a "dominant assurance contract" also known by the registered trademark specific provider of such arrangements known as "Kickstarter" contracts with a refund bonus, and similar in principle but without profit-making objectives, to a subscription agreement. It also bears similarity to a gift registry. Many leases create de facto partnerships and unincorporated associations, as do some real estate covenants. Another important (and heavily regulated) type of contract, which is often mistaken for an entity type since it is used in lieu of a parent-subsidiary relationship between a business headquarters and a particular location of a business, is a franchising agreement, in which the franchisor receives a share of gross profits and a fee from a franchisee who gets the right and the obligation to conduct business under a trademark in accordance with highly detailed central rules regarding how the business is conducted on a day to day basis, even though particular business locations are not enterprises owned by the franchisor. Legal multilevel marketing arrangements, and very similar illegal pyramid schemes are likewise typically organized on a contractual basis. There is also terminology for certain kind of contractual arrangements for non-business purposes, similar to those described in the question, in many civil law countries such as France (as opposed to countries with common law legal systems), but I am not familiar with all of this terminology itself (much of which lacks a direct and exact English language equivalent). A distinction is made procedurally, and in some formalities and requirements, between commercial contracts on one hand, and a category of contracts often translated as "non-commercial contracts" or "civil contract" on the other. For example, in France, arbitration clauses are usually not permitted in non-commercial contracts, and lawsuits to enforce non-commercial contracts must normally be brought at the defendant's domicile. Civil law countries also make a stronger distinction between "typical" contracts, which are spelled out in detail by statute and to which many default rules of law and mandatory rules apply, and "atypical contracts" which are treated with more skepticism by civil law courts and require more detailed express enumeration of the rights of the parties and of the reasons that the government should enforce those rights, than in common law country jurisprudence (although France eliminated this concept from its civil code in lieu of provisions enforcing substantive fairness in many cases, in an October 2016 overhaul of the contract law provisions of its civil code which had only been lightly amended before that since its original adoption in 1804). A sixth is co-ownership of property or other legal rights. Sometimes more than one person owns property and they have legal rights that arise from co-ownership of that property, even in the absence of any contract formation related to their co-ownership, in the absence of any imposition of a trust relationship on someone as a trustee for someone who is not the legal owner of property, and without an intent to carry out any particular enterprise or project with or without an intent to make a profit. This is mostly governed by case law but typically with modest statutory regulation of specific issues (like the right to bring a partition action if one party wants to end the co-ownership relationship). Sometimes co-owners also have a contract governing their respective rights (or a covenant, which is a contract that runs to successive owners of property, usually real estate). France recognizes along these lines "Agreements Relating To The Exercise of Undivided Rights" in Article 1873 of its Civil Code. A seventh is that when someone conducts business for the purpose of making a profit without working jointly with someone else, and without forming an entity, the enterprise is called a "sole proprietorship" (if business is actively conducted) or an "investment" (if profits arise mostly from passive ownership of property). Custom dictates that certain activities, like renting real estate, are considered investments, even when significant active management is involved, while other activities are usually considered to be sole proprietorships, even when they don't involve particularly pro-active conduct. The common law of agency and tax law are important to the operation and regulation of these businesses. In a related issue, a sole proprietorship or other entity (whether or not registered with the government) may often, either by formal registration or merely by dint of using it in the course of business, depending upon the jurisdiction, acquire legal rights in a trade name of an enterprise (also known as a "doing business as name" or "dba") and/or trademarks associated with goods or services sold by an enterprise or sole proprietorship. An eighth is that when someone engages in a project for purposes other than making a profit without working jointly with someone else, or with an intent to make a profit that is consistently not achieved most of the time for a statutory number and proportion of years, and without forming an entity, that has a character similar to conducting a business, the enterprise is called a "hobby" for tax law purposes. This isn't comprehensive, however. Some economic activity undertaken without involving someone else or forming an entity, and without an intent to make a profit, simply doesn't have any name other than "consumer spending" or a "personal and/or household activity." In contrast, entities formed by registration with the government, more or less exclusively, include corporations (both for profit and not for profit, including most corporations sole which are similar to trusts), limited liability companies, limited liability partnerships, limited partnerships, limited liability limited partnerships, limited partnership associations, mutual companies, and cooperatives. Entity formation is typically cheap and easy, although some kinds of entities such as national banking associations require special regulatory permission. Municipal governments, local governments such as school districts and special districts, and many independent government agencies are also often organized as governmental corporations and governed by specific statutes that apply to them. Is this possible at all or do you automatically found some sort of legal entity the moment you do this? This is often, but not always, the case when more than one person is involved, as the list above illustrates. Does such a stock issue have to be registered with the country’s equivalent of the SEC or are they exempt? If the latter, do you have to apply for such an exemption or is it granted automatically? It depends. In the U.S., the threshold question is whether an interest in the project is a "security". There are many kinds of debt and equity investments that are automatically securities (even debt issued by a natural person, rather than an entity, which is transferrable and sold to members of the general public, could be a security). There is also a residual category called an "investment contract" which counts as a security if it meets a multi-factor legal test. There are various exemptions from the securities laws, and some are automatic, while others are not. But there are also some securities laws that apply to transactions involving securities even if the securities are exempt from formal registration with a government entity. The most notable of these is federal SEC regulation 10b-5 that imposes securities fraud liability when there is fraud within the meaning of the regulation in any transaction involving the purchase or sale of a security, even if that security is exempt from registration as such with a governmental entity. Some transferrable rights that are not necessarily securities but have some similarities to them are publicly traded commodities, security entitlements, negotiable instruments, warehouse receipts (particularly negotiable ones), and cryptocurrencies. In addition to regulation under state and federal securities laws, certain kinds of joint activities have other very specific regulations that apply to them (e.g. churches, or pooled investment funds, or cooperatives, or home owner's associations, or political parties, or election campaigns, or buyer's clubs, or timeshares) and there is really no way to know, in general, what those activities will be, without just learning about them from a general knowledge of a jurisdiction's laws. Is this regulated on a federal, state, or municipal level or does the issuer have to comply with the law on all levels? You have to comply with the laws on all levels. Normally, the legal rights of the parties primarily arise under state law in the U.S., and the disclosure requirements normally arise under both federal and state law. But no one level of government has exclusive jurisdiction to regulate private activities and it isn't unprecedented, for example, for local governments to authorize certain kinds of private enterprises (e.g. neighborhood associations in places that don't have HOAs, or composting co-operatives). Many local governments require all businesses that operate in their territory to be registered or licensed with them, no matter how they are legally organized, and state and local governments also often require special licenses for all businesses (regardless of form of organization) which are obligated to collect particular taxes such as lodging taxes, sales taxes, value added taxes, fuel taxes, alcohol or cigarette taxes, or "head taxes". Similarly, many occupations and professions require government licenses at one level of government or another, and sometimes, more than one level of government. Some licenses are mostly federal (e.g. investment advisors and securities brokers), some are primarily state level (e.g. doctors and lawyers), and some are primarily local (e.g. street vendors and many construction trades). Are there relevant court cases that show what the penalties are for getting this wrong? Yes. But the question is too broad and vague to meaningfully discuss them. These cases are usually particular to the specific type of transaction involved. Does it make a difference in practice if the market capitalization of the project is almost certainly always well below $1 million? This is relevant to the kind of securities law exemptions that apply when a transaction is deemed to be a security under federal and state securities regulations. There are many exemptions and most of them have dollar limitations attached (although some do not). The background is that I want to start an online platform to make this easier for people, but of course I don’t want to get into legal trouble and I don’t want my customers to get into trouble. You haven't even begun to scratch the surface of the myriad legal issues presented. Your example sounds more like some sort of transferrable contract right, rather than a security (although it could be both), since it appears to be purchased primarily for use rather than as a profit making investment. It bears a fair amount of similarity to certain kinds of timeshare rights (and might even qualify as a timeshare under the regulatory and consumer protection rules of some jurisdictions which define them broadly). You need to develop a far more specific idea of what you plan to do and then meet with a lawyer to discuss the entire concept start to finish to spot as many legal issues as possible. This is not something you should try to do without a lawyer. | I think you would do much better to describe the situation, and the result you wish to achieve. Include enough detail for the lawyer to understand the nature of the case, but keep it brief. More details should come once the lawyer has agreed to take the case, or to give you an interview/consultation to discuss it. Later in your letter, if you like, you might include "We understand that ORC 2741.02, 2741.06, and 2741.07 may give us a basis for suit" but I would not go into any more detail about the law in an initial letter. If during the consultation (in person or by phone or zoom or some such), the lawyer does not mention laws you have learned of and think relevant, you could mention them and ask why the lawyer is not addressing them. The lawyer does not need or want to be told what you think the law is, the lawyer needs to know what the situation is and what you hope to do about it. That includes who "we" are. Update As the answer from ohwilleke says, a telephone all might be better than a letter. But in either case, the key things the lawyer will need to know are: 1) who are you?; 2) what is the situation you are concerned with (details may be important here)?; 3) what do you want to accomplish through the lawyer's services?; 4) who are the other parties involved? You will want to learn: Does the lawyer m(olr law firm) handle that sort of case?; Are they willing to take you on as clients?; 3) Hpw much experience has this lawyer had with this sort of case?; 4) What are the likely upfront costs?; and 5) What are the chances of success? Items 4 and 5 may not get answers in a first round of contacts. 2nd update, based on revised letter You still start with a statement of the law you think give you a claim. Please do not do that. In this draft letter you do not say anything about the actual problem you have or what you want done until the sixth and next to last paragraph of the letter. Even then you are not very clear on what you want the lawyer to do. "we find ourselves forced to learn how to sue an ex-customer" sounds as if you are asking for education, not legal services. I would suggest something more like: We are an association of traditional artisans. An Ohio business {insert business name} that had formerly purchased and resold some of our work has been using the images of us and our families to advertise its goods without permission. We want this stopped and also want monetary damages for past use. We think we may have a claim under {ORC sections}. In any case we want this stopped by whatever legal process would be most appropriate. That puts the situation first, your desire second, and any comment about the law later (or it could be left out). | Yes. Usually a lawyer can charge until a court formally withdraws him from representing you in a case for representation in that case (even if a new lawyer has entered an appearance and you have fired him). A terminated lawyer, even after withdrawal, can also charge you for legal fees incurred to collect the lawyer's bill from you if the fee agreement allows him to do so. Many lawyers don't charge their clients for billing matters, but the law allows lawyers to charge clients for billing matters if their fee agreement says that they can. The post-termination charges you describe in the question sound like costs of collection of the bill, so they are legal if they are authorized by the fee agreement. |
unregulated or illegal Today at work I have some arguments with a colleague. He is stating that unregulated technologies are illegal. Not sure if it makes a difference but the technology we were talking about is cryptocurrency. Is there any principle in law that says that unregulated inventions/technologies are illegal? | In the United States, no. For something to be illegal in any meaningful way, you have to be able to point to a law that makes it illegal. If there's no law to break, it's not illegal. I would wonder if your colleague was thinking about question of whether cryptocurrencies are legal tender. For something to be "legal tender," there would need to be some kind of law or regulation requiring people to accept them as payment. There is no such requirement in the United States, so Bitcoin, for instance, is not legal tender. But that doesn't make it illegal tender; it just means that people can decide whether to accept it or not. | No, it is not illegal. The company has no standing to punish you for that. Companies can't sue random people for sending random email... that was largely settled under the (YOU)-CAN-SPAM Act, when in the guise of standardizing US anti-spam laws, spam was largely legalized and state laws were pre-empted and barred from existing. However, all the other laws still apply Laws on harassment, for instance. Sometimes people with mental illness think another human "owes them" a relationship (which kind of misses the point of what a relationship is, but never mind that). And those people, who sadly are an all-too-common cliché, tend to act badly in very predictable ways. As such, we have plenty of laws on the books (and plenty of family court judges who have seen it all) to dispense consequences to the misbehavior and protection to the victim. All those laws really don't care in which medium one might violate them: sky-writing, naval light signal, email, whatever. | It's hard to give a definitive answer, since the specific details matter. You should read this question and answer, What is a derivate work? for more information. If you're really considering investing the time and energy to create such a product, you might consider getting advice from an actual attorney, and not from strangers on the Internet. | You may, though you may have to be careful about that you say. Providing information about alternative medicine is legal in the US. You can read this article which addresses unapproved medications and therapies from a medical policy perspective, touching lightly on legislation. There are restrictions, enforced by the FDA and the FTC, on what you can sell and claim for your products, in case you sell dietary supplements or are in some other way making a business of purportedly curing people. Here is a starter page about FTC regulation of health claims. Here, for example, are some actions that the FTC took against companies for unproven CBD claims, such as an action against Bionatrol, with many kinds of purportedly false claims made "In connection with the advertising, promotion, offering for sale, sale, or distribution of CBD Products". It's not the claims that are illegal, it's making the claims in commerce that's illegal. The FDA regulates drugs and devices, and this page divides the FDA regulations into functional types such as "drugs" and "medical devices". It would be illegal to sell a "brain ray machine" that purports to cure cancer, but it would not be illegal to describe how to build one. There are a number of DIY treatments available on the internet, for removing ticks, slivers, for bandaging scrapes and so on, none of which have or require government approval (in the US). In some cases, such a website might infringe copyright or a patent, so that would be a way in which the website could be illegal (Four Thieves Vinegar). Without any further information on what such a website is saying, it's hard to be sure but this gives you the general limits on the legality of such a site. | The part about "If I'm the owner of the content, surely I have the right to request its deletion" is the problem. Sure, you have the right to request, but you can't legally compel. You have an agreement with them, according to which you got something, and they got something. You can't then take back the thing that you gave them, which is permission to use. You didn't give them the IP itself, which you still hold. Here's an analogy. You may own a car, and can give a person permission to use the car (let's say "if you bring me back a pound of cheese from the store"). You cannot later change your mind (especially after you've gotten the cheese) a say that you retract that permission and therefore they actually stole your car. When permission to use is given, as long as the conditions for granting permission are satisfied, you can't un-give permission. | Copyright and patents are two very very different things. Copyrighting a standard means the wording of the standard can not be copied without the copyright holders permission. It does not protect the ideas expressed in the document, just the way those ideas are expressed. IEEE standards, for example, are copyrighted by the IEEE and therefore you can't make a copy of the Ethernet specification, you need to buy it from them. That has nothing to do with implementing an Ethernet device. To implement something described in a technical specification might or might not require one or more patent licenses. The authors of the standard may not even be aware that something they require for the standard has already been invented and patented by someone else. Many standard bodies do impose a requirement on participants in the standard's creation that they offer licenses to any patents they own that are needed to implement the standard on a fair and equal basis to all. It is called FRAND - the acronym for fair, reasonable and non-discriminatory licensing. | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. | You haven't specified a jurisdiction. In the United Kingdom† this is a clear violation of section 3 of The Computer Misuse Act 1990 (1) A person is guilty of an offence if— (a) he does any unauthorised act in relation to a computer; (b) at the time when he does the act he knows that it is unauthorised; and (c) either subsection (2) or subsection (3) below applies. (2) This subsection applies if the person intends by doing the act— (a) to impair the operation of any computer; (b) to prevent or hinder access to any program or data held in any computer; [F2or] (c) to impair the operation of any such program or the reliability of any such data; [F3or (d) to enable any of the things mentioned in paragraphs (a) to (c) above to be done.]] Deleting the data is unauthorized (3.1.a) The ethical hacker knows it is unauthorized (3.1.b) Deleting the data prevents access to the data (3.2.b and hence 3.1.c) † This is one of the few Acts that apply to the whole of the UK. |
What is the process for obtaining an anonymous internet poster's identity for a civil lawsuit? An anonymous person can, given some effort and a minimum of expertise, ruin a person's life on the internet through defamation. (The popular method currently is to forge authentic looking screenshots of a person posting insensitive or hateful statements, and setting them loose online) If a person is victimized by an anonymous person online in this way, what are the steps for them to exact damages in a civil court case? Not too interested in if it's practical, I'm wondering if it's even possible. How would a person compel Twitter/Reddit/etc. to disclose the ISP information on their account? How would a person compel an ISP to disclose the subscriber information (address, name) for the IP address? Is obtaining the ISP subscriber's information enough to bring a lawsuit against them? Would they able to argue they didn't post the messages and bear no liability, even if it originated from their network? If it originated from an open wifi hotspot, would the proprietor bear responsibility at this point? Can the extensive legal costs of pursuing the case to its conclusion be added to the damages sought easily? | First, read the definitions of defamation and libel be sure you understand them: Defamation | Wex Legal Dictionary | Cornell. Yes, posting to Twitter and Reddit is publishing, and people can post provably false facts on those services and defame someone in a civil law sense. But Section 230 of the Communications Decency Act (Electronic Frontier Foundation) mostly protects those services from defamation claims based on statements made by users of such a service. (Things are different if the case is criminal as a result of clear threats of violence, terrorism, etc.) ...what are the steps for them to exact damages in a civil court case? Find a lawyer, convince him/her to take the case, and file suit. if you don't know the person's real name, your lawyer will have to sue "John Doe" and point that out in the suit (and subpoenas) with the alleged Twitter handle or Reddit user name. How would a person compel Twitter/Reddit/etc to disclose the ISP information on their account? Read the various legal aspects of each service, i.e. Twitter Legal FAQs and User Agreement - Reddit and others. Your lawyer can explain that you can only try to compel them to disclose the IP and the ISP used with a subpoena during your lawsuit. How would a person compel an ISP to disclose the subscriber information (address, name) on the IP address? Since most ISPs protect their customer data, you will probably have to subpoena the ISP during your lawsuit. But your ability to do this can depend on if the ISP is a private company or a government entity, such as a university. State laws may come into play. Is obtaining the ISP subscriber's information enough to bring a lawsuit against them? Would they able to argue they didn't post the messages and bear no liability, even if it originated from their network? If it originated from an open wifi hotspot, would the proprietor bear responsibility at this point? Yes, you can sue an individual with such information; but there's no guarantee you'd win. Sure, because they can claim anything, such as someone else was using their computer or IP. No, owners of hotspots are generally not liable, and they protect themselves with TOS you agree to when you use the hotspot. Can the extensive legal costs of pursuing the case to it's conclusion be added to the damages sought easily? Legal costs can possibly be added, depending on jurisdiction. But seeking damages and actually winning them through a jury verdict are completely different things. | tl;dr- I don't see how you can "leak" a large organization's IP addresses given that they seem to be very public information. However, misusing an organization's network services or/and somehow being complicit in an attack could probably get someone into touble. Organization IP address allocations seem to be public information. I Google'd "Colorado university IP address". The first search result was this official webpage for the University of Colorado, Boulder. It says: IP Ranges for Server Administrators All public IP space for CU Boulder can be described by the following notation: 128.138.0.0/16 198.11.16.0/20 But, say that that university didn't publish its IP addresses online. Then this website shows them anyway. Additionally, seems like anyone at your school can get an IP address by Google'ing "what's my ip". Or you can use Bing. Or WolframAlpha. Or, heck, this website doesn't seem to do anything but show your IP address. Point being, I don't see how an organization's IP addresses could be considered information that could be "leaked". There're other things that might get someone into trouble though. However, this sounds like a potentially different matter: well someone at our school got our IP address banned from editing on Wikipedia Ideally that "someone" isn't you or a friend since such activities can easily be against an organization's acceptable-use policy (example) or/and the law. | The warning notice is intended for viewers and participants, not for the court to make its own official record of the proceedings. Presumably, it was this court record that the judge released for educational purposes under his own Order via Twitter. In which case, there has been no contempt of court. | It may not be libel, but it may violate other statutes and may support a judgement against the person publishing this information as long as there is an injury-in-fact ("an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical"). A recent case, Spokeo, Inc. v. Robins 578 U.S. ___ (2016) considered the case where a company created a profile for a person. That profile stated "that he is married, has children, is in his 50’s, has a job, is relatively affluent, and holds a graduate degree". The plaintiff asserted that all of this was incorrect. The plaintiff made a claim under the Fair Credit Reporting Act because the information was false. However, mere violation of statute is not sufficient to meet the "injury-in-fact" requirement for standing. Congress can't create standing via statute. Injury-in-fact still requires a "concrete" injury. This does not need to be a physical, tangible injury. But, it does need to be concrete. On its own, publication of false information, even when statute prohibits it, does not create standing. There must be an injury-in-fact. | Facebook's local jurisdiction is the US. In the US, making false statements isn't generally illegal or tortious, as they are protected by the First Amendment to the US Constitution. So, Facebook isn't under any legal pressure to remove posts that are posting false information. It sounds like you've already asked them to remove the posts and they refused, so at this point you do not seem to have any procedural recourse with Facebook. It's possible your country or the country the person is posting from lacks free speech protections and would either prosecute or allow suits against someone posting false information, if that's the case you could try to get the local equivalent of a prosecutor to prosecute them. I realize that is unlikely to happen, the reality is that coordinated fake news on the Internet is still something that platforms are figuring out how to deal with fairly. | Earlier this year, the Internet lawyer Arnoud Engelfriet wrote a blog post about exactly this topic. As it is written in Dutch, I will summarize it here: As you also said, deleting posts breaks the flow of the archived conversation and it makes your archive incomplete. This is a problem for the freedom of expression and information. But Art. 17(3) GDPR includes an exception to the right of erasure for this situation. So posts do not need to be deleted. However, profiles are not included in this exception. So they must be removed, but they can be pseudonymized. For example replace the username with user89432, and remove all details from the profile. If other posts contain the nick of the author of an anonymized post, that is considered an journalistic, academic artistic or literary expression, so Art. 85 GDPR would apply, so the right of erasure does not apply to that. Bottom line: you only have to pseudonymize the account, if that person wants to be removed from the forum. | If you sue a person for a tort X, one of the things you have to prove is that the defendant did do X. A baseless belief that it must have been so-and-so will do you no good. You do not have to have iron-clad evidence of your allegations, for a civil suit, but you have to show with a preponderance of evidence that the claim is true. A combination of "hates me" and "provably did this a number of times in the past" could well suffice. As for damages, it depends on what harm you actually suffered. If you get fired and you show that it was because of a false allegation, you would probably have to take this to the big court, since small claims court handles amounts in the $5,000 range (jurisdiction-specific). | Probably not, because you should be in a position to rely on the Safe Harbor provision of the DMCA. Safe Harbor protects service providers who provide open, non-moderated spaces for users to directly contribute content. Safe Harbor means you do not need an army of moderators to inspect every message posted to the site or system. It is essential for sites like Twitter, Youtube or StackExchange to exist. You are not liable for that content if you provide a means for IP owners to report copyright violations, and promptly take down any content which an IP owner reports as violating. You don't need to get in the middle of whether that's really true; there's a mechanism for the user and IP owner to "duke it out" directly at no risk to you. However you must take the required steps. For instance you must register an agent, and respond timely to DMCA takedown notices, which means you must be reachable as per the law. Your designated agent address must be staffed 9-5. Note that the "Designated Agent" can be the same person as the "Registered Agent" that you already must have when you are an LLC or corporation. And you'll want to be an LLC or corporation by the time you get big enough to worry about copyright lawsuits. |
Can someone claim copyright infringement after-the-fact? I made a mod for this free online indie web-browser game. A snapshot of the website 2 weeks ago on waybackmachine.com shows no copyright logo or Terms of Service anywhere on the page saying it's copyrighted. The developer of the game found out about my mod and tweeted that he would get it shut down. The developer has since put up a Terms of Service on the game's website that says all works are copyrighted and modifying the game is illegal. He then contacted google and got my mod taken down and I received a copyright strike on the chrome extensions store. I don't really care about the mod anymore but can I get into legal trouble for this? Edit: I should also add that the mod I made was free and the game is also free to play. | The web-browser game was copyrighted the moment it was created by the individual. It did not need a copyright notice to be copyrighted, or a TOS to inform you of copyright. The individual was fully within the law to claim infringement and demand you stop disturbing your mod as an unauthorized change to their game. They should have had a TOS up when they started distributing the game, but that's their choice. The developer could - or have their attorney - send their own legal "takedown notice" of infringement directly to you rather than Tweet about it or approach Google. Google's takedown and your "copyright strike" is different than your original copyright violation and involves Google's TOS - Google Chrome Web Store Developer Agreement | Google Chrome - regarding copyright violations of apps and code under distribution. By your use of the store, Google reserves the right to remove your extensions when there are ...violations of intellectual property rights, including patent, copyright, trademark, trade secret, or other proprietary right of any party,... And, the original game being free and your mod being free rarely matters in copyright law and in cases of infringement. That's something a court would decide on the case and in looking at precedent(s). ...can I get into legal trouble for this? You could be sued by the maker of the game in civil court; that's up to them. Google's recourse is to simply remove the mod from the store and possibly restrict your use of their service(s), according to their TOS. For more background, see the Law SE Meta post I have a question about copyright. What should I read before I ask it? . | In the USA, you are covered by the DMCA act, which you should most definitely read. I can't sue you and your website for copyright infringement unless I first send you a DMCA takedown notice. (Of course I can sue, but I will lose). In the DMCA notice I have to tell you who I am so that you can contact me, I have to tell you under perjury that I am the copyright holder or an agent of the copyright holder of some work, and that I believe your website is infringing on that copyright. You then have the choice to remove the material, which means I cannot sue you for copyright infringement because you acted on my DMCA notice, or you can refuse to remove it and I can include you in a copyright infringement lawsuit. By not acting on a DMCA notice you take full responsibility. If you remove the material, you should inform the person who uploaded it. That person can decide to be Ok with the removal (and hope they won't get sued for copyright infringement, and they usually will be fine), or they can send you a counter notice. That counter notice would tell you that the uploader believes he or she isn't infringing any copyright. After receiving a counter notice, you may reinstate the material, and you tell the sender of the DMCA notice. Again, you are now legally protected. The uploader can now be quite sure to be sued, unless the DMCA notice was sent in error. | Public domain means that there is no (longer) copyright in the given work. This means that all rights associated with copyright are not controlled by anyone and there is no way to run afoul of copyright laws (note that in some countries a true "public domain" doesn't exist). Assuming you're correct that these works are in public domain, answers to your particular questions are: Does that mean I can play the video's as much as I want to any size crowd I wanted? Could I charge money to watch the videos? Yes and yes. If something is in the public domain does that mean all the parts of that thing are? This kind of begs the question. A work in public domain has no copyright in it. If one of its part has copyright, then it's not really public domain is it? What about the characters in the videos, could I make a new Bugs Bunny or Might Mouse animation on my own? If I wanted to use Popeye or Betty Boop or daffy duck in a video game could I? Copyright isn't your issue here, trademarks are. The characters are most likely trademarked, meaning you generally can't use them in your own works without licensing. | Yes, it does. Using the downloaded content, whether it was scraped or individually downloaded one file at a time, for research or for commercial purposes would violate that TOS provision (unless some other provision contradicts it, or you obtain specific permission). The site owner could sue you for such a violation, should the owner become aware of it. I do not think it would be likely to be a criminal offense, depending on the jurisdiction. | Yes, assuming the material was given the standard license. You would be creating a derivative work, and only the copyright owner has the right to authorize creation of a derivative work. See the copyright FAQ for general information. The owner can file a DMCA takedown notice with YouTube and they will by policy notify you of the infringement claim and unless you file a counter-notice (you legally couldn't given the facts you're asserting), they will take it down. The owner can also sue you. | No. That clause does not give other users a licence to reproduce the work (other than what is necessary to access or use it) or create derivative works. The copyright owner has the exclusive right to do those things. (See 17 USC 106.) The clause you quote only indicates that other users can "access" (download for viewing) your "information" and use it, too. It doesn't give away any of your exclusive copyright in the work. You do grant Facebook a licence to do certain things with your work in section 2.1 of the Terms of Service, though. | First off, the work is almost certainly not in the public domain in the US. Works are generally copyrighted upon creation or publication, but in this case the work was probably explicitly copyrighted. The fact that a work is out of print generally has no bearing on its copyright status. US copyright law changed several times in the last century. The 1985 copyright year means the board game was probably published then, and it's since it's a Disney copyright it's a corporate work, which would give it a copyright term of 95 years, meaning that it should be covered under copyright until 2080. See this factsheet on copyright from the US Copyright office. Works Created on or after January 1, 1978 For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter International laws will vary, but many countries adhere to the Berne Convention, which means that international laws will probably be at least similar. Either way, the work isn't very old from an intellectual property perspective. Fair use is an exception to copyright law that allows portions of copyrighted works to be used without permission or compensation in certain circumstances; academic or scholarly use is one of them. Generally, your use of the work has to be the minimum necessary amount to serve your purposes, and cannot harm the commercial value of the work. (The fact that the work is out of print may help with the latter.) The problem with fair use is that it's always determined on a case by case basis. The only way to know for sure if a particular use is fair use is to wait for the copyright holder to sue you and then make a fair use defense in court. I was going to suggest that you discuss this with the editor of your journal, but re-reading your question it looks like you're planning to publish to a personal blog rather than an academic journal. In the end, it's up to you (or your attorney, if you choose to hire one) to analyze the relevant legal concepts and rules and decide if and how much of the work to use. | That's copyright infringement, and is illegal under various copyright laws. To take down the content, you'll have to make a claim under the Digital Millennium Copyright Act. The online form for making a takedown notice to YouTube under the DMCA can be found here: https://support.google.com/youtube/answer/2807622?hl=en Remember, that by submitting a takedown notice, that you are initiating a legal process. Take extra care not to abuse it, and to make sure that all information you submit is accurate. |
If I take a photo with my Android phone of a tree to use it as a texture in a video game, who does the copyright belong to? Let me describe my situation in a nutshell: What if I went around a forest, decided to take photographs of some trees, the ground, water, etc. with my Android phone, so that I can use these photos as textures in a video game of mine? Not necessarily comemrcial game, but let's assume that it is. Who owns the copyright of these textures? Me? The phone manufacturer? Google for developing Android? The government for having de facto ownership of the territory I took the photo on?ű No one? I am Hungarian, but you can answer using American laws too, as I doubt the laws are that much different in regards to that. | Photographers own the copyright in their photos, in general the person who creates a work owns the copyright in their work. Otherwise, makers of cameras, chisels and typewriters would own all of the copyrights. Android is just another tool. Property owners don't hold copyright in works involving their property, though they may prohibit photography of their property, enforceable via the law of trespass. | Yes, you did something wrong; you used both the university's trade mark and copyright without their permission. I don't know the law in India, however, if it is similar to Australia it is unlikely that the police will be interested in doing anything about it. While it is technically a crime, criminal prosecution is usually reserved for egregious breaches on a for profit basis. I suggest you apologise and agree to stop distributing your app. | Game mechanics are not copyright able. However, the images, words used, description of the rules are all copyright. If the original games is the source of the video game then the video game is a derivative work. If the original game is only the inspiration and the look and feel is different then this is OK. Which is which will turn on the actual facts. | More generally, can anyone just copy an existing website (without copying the code or images)? Yes. Could I make a website that lets people post pictures like Instagram but call it MyPics? Yes. In general, copyright protects particular expressions of ideas, not higher level ideas or concepts. | I'm wondering whos responsible for this code if people start using it? The user. Can the people using it that think its under GPL in any way get in trouble for it or be made to remove it from their projects? Yes, they can be sued (successfully) for copyright violation. It’s not enough that you think you have permission from the copyright holder - you actually have to have permission. The law places the onus on the copier to seek out and get permission from the copyright holder. In theory, someone deceived in this way could sue the repo poster(s) for misrepresentation, however, there are practical issues about finding them, having them in an accessible jurisdiction and if they are judgement proof. Copyright law was created to protect physical books and paintings - it doesn’t really fit with digital methods of reproduction but it is the law. It doesn’t matter that complying with it can be hard bordering on impossible - comply with it you must. | united-states The composition of a photograph, a painting, or an image of any sort is one of the elements that can be protected by copyright, and indeed one of those aspects that make an image original and thus a proper subject of a copyright under US law. A new image that imitates the original and distinctive composition of another might be held to be a derivative work, and thus an infringement of copyright if done without permission. Note that the composition must be original. A photo of, say, two people standing side-by-side has been done many times, and would probably not have any distinctive element of composition. The images shown as part of the question look rather distinctive to me, but for all I know this is a cliche that has been done over and over. If this came to an actual lawsuit a defendant could present evidence showing the composition to have been previously used by others, and thus common coin, free for anyone to adopt. This would be similar to the Scènes à faire concept. Things that have been done over and over are not original and are thus not protectable by copyright. That would ultimately be a judgement for the court to make, dependent on the facts of a specific case. I suspect this answer is correct for the laws of many countries, but I can only confirm it for US copyright law. | BAD idea It is one thing to upload the phonebook and associated pictures for use of the owner of the phonebook. It isn't a fair use of the phonebook pictures - and you might not have a license anyway, as some people associate photos with numbers that they don't have a license to associate with anyway. But what if instead of a photo of the person, the first photo someone associated with the person is a photo of something like... crack cocaine, a photo of someone in a very compromising situation, just genitals, or some other thing that is just as tasteless or possibly criminal to share? In that case, your company is possibly committing defamation, and in case sharing or possessing of the image itself is illegal, your company is now the actor and liable. Depending on the content of the picture, distribution of pornographic material (possibly even underage material of that sort) could be up that alley just as much as hate speech through symbols, usage of banned symbols (such as swastikas in Gernamy) and many many others. | Your understanding of the GPL is a bit off. GPLed code doesn't generally force you to GPL the output of the program, but that's just because the output of the program is normally not a derivative work of the program. For instance, if you write a novel in Emacs, your novel is an entirely original work. The fact that you used Emacs as a tool doesn't mean that your novel is somehow based on Emacs. This generator is different. It generates sprites by putting together art assets made by the program's creator. That means that the output contains a substantial amount of content made by the program creator, which means that it would likely be covered by the program creator's copyright. If the content was licensed to you under the GPL, you normally have to abide by GPL restrictions when you redistribute the content or incorporate it into your own program. Copyright holders can, if they want, grant additional permissions to their content and allow you to incorporate that content into nonfree software. For instance, the GCC compilers have an additional permission for their runtime libraries to let you use them in any GCC-compiled code; without that permission, GCC could only be used to compile GPL-compatible code. But unless the copyright holder has granted those permissions, when program output contains large amounts of their copyrighted content you're bound by the GPL when using it. In this case, the program specifically says that the art is dual-licensed under GPLv3 and CC-BY-SA-3.0. Since the generator's output is a combination of premade art assets (the buttons just let you tell the program which art assets to combine), the output is a derivative work of those assets. You can't use it unless your use is compatible with the GPL v3 or CC-BY-SA-3.0 (either works, since dual licensing lets you pick either license). |
Someone copied and published content from my blog post - is this legal? About two and a half years ago I wrote a technical article on Medium.com, which included some graphs. I recently came across a book that was published (which I bought to see the content) last year that copied my words and graphics as-is. I was wondering whether this is legal, and who owns the rights (if anyone) to the content of my post. | According to the current version of the TOS: You own the rights to the content you create and post on Medium. By posting content to Medium, you give us a nonexclusive license to publish it on Medium Services, including anything reasonably related to publishing it (like storing, displaying, reformatting, and distributing it). In consideration for Medium granting you access to and use of the Services, you agree that Medium may enable advertising on the Services, including in connection with the display of your content or other information. We may also use your content to promote Medium, including its products and content. We will never sell your content to third parties without your explicit permission. This explicitly says you own your content, although Medium has some rights to do some things. And they won't sell it without permission, so unless Medium itself is publishing this book, it would seem to be copyright infringement. (Of course, I don't know what the TOS said when you originally wrote the article.) If what was copied was not copyrightable (like a quote from the Constitution, or a simple uncreative graph of something obvious) then it wouldn't be infringement. But your article was probably more than that. | Technically speaking, such emails are copyrighted by the sender. However, showing such an email to a third party, or posting it publicly in order to comment on it would almost surely be a fair use in the US. In any case, such an email would have no commercial value, and so there would be no financial damages possible. A lawsuit over such a technical copyright infringement would, in my view, be quite unlikely, and even less likely to be successful. Indeed, filing such a suit would be one of the best ways for the business to draw attention to the issue, in an example of the Streisand Effect. | No. You may not do this. As your post points out this is a blatant copyright violation. It isn't remotely in the realm of fair use. | Generally speaking, if a person sends you an email you can publish it. Like if they call you a bunch of nasty names, or threaten you in some way, that information is yours and you can publish it. However, I'll give you three scenarios where you should not publish an email sent to you (and I'll edit to add more if they come up). Private facts. There is a tort called publication of private facts. A plaintiff must establish four elements to hold someone liable for publication of private facts: Public Disclosure: The disclosure of facts must be public. Another way of saying this is that the defendant must "give publicity" to the fact or facts in question. Private Fact: The fact or facts disclosed must be private, and not generally known. Offensive to a Reasonable Person: Publication of the private facts in question must be offensive to a reasonable person of ordinary sensibilities. Not Newsworthy: The facts disclosed must not be newsworthy. Stated differently, the facts disclosed must not be a matter of legitimate public concern. From Digital Media Law Project Note one thing - the offensive fact does not need to have been completely private for you to be liable, it must not have been generally known. In other words, someone like you who has a really low "public" bar needs to be careful. Also note that your buffer system might not help if the facts you publish are about someone other than the email sender; you are the one who published them. Stolen Information If someone sends you some intellectual property of a third party it is not yours to publish. Trade secrets, copyrighted works, prototype photos, etc. The sender might be breaking the law by sending the stuff to you but you're the one who published it so you can join as co-defendants. Barrett Brown was indicted for sharing a link to some stolen information. A link! He's in prison on other charges. Copyright held by the original sender (ht to @Dave_D) If the sender is the original author of the email, then the sender holds the copyright to the body of the email. Publishing the email violates the copyright. However, you could account for this in your buffer. Maybe. I am not sure is that is explicit enough. | It's possible that CAD has a separate licence from the authors of ABC that allows them to produce a closed source copy. If not, they have no right to distribute CAD. However two wrongs don't make a right, and so you don't get to violate the copyright of CAD.* Unfortunately, unless you are one of the authors of ABC, you have no standing to sue the authors of CAD. You can only notify the authors of ABC and hope they do. If the authors of ABC don't have the resources to pursue the matter, you may be out of luck. That's one of the reasons the FSF gets copyright assignments for their projects. * It turns out that this is a much more debateable issue than I first thought. Some courts have held that an unauthorized derivative work is not copyrightable. | Yes, if the book was published in 1913, the copyright has expired. You can freely scan it in and publish it. But note you have NO copyright to the material. You didn't write it. Copyright law gives rights to the AUTHOR of a work. It doesn't matter how much effort you went to scanning it in and formatting it. Nothing in copyright law says that that gives you any rights. If you add anything creative of your own, you would own the copyright to the new material. Like if you drew new illustrations and added them to the book. Or if you included your own commentary. Or you added explanatory footnotes. That still wouldn't give you rights to the original text, but you would own the new material. But in the same vein, if the book was originally published in 1913, but the copy you have includes material added by a later editor, that later material might still be protected by copyright. Just a side thought, it occurs to me that if I was going to republish a public domain book, a good idea would be to add footnotes. If my footnotes appear on almost every page, then no one else could just take my electronic files and sell them himself. He'd have to go through page by page and purge out all the footnotes. Make it hard for someone to "borrow" your work and you might scare them off. | US law simply prohibits copying, not possession of a pixel. If you copy 90% of a work, you are still copying, infringing on the creators exclusive right. Same is true if you copy 20%, and so on. The pertinent first question is, how do the courts decide if there has been copying? This is a factual matter decided on the basis of preponderance of evidence. Defense will argue, very persuasively, that it is more likely that the presence of an identical pixel in two works is purely coincidental (likewise, the appearance of the word "is" in two texts is purely coincidental"). We can imagine future technology with megabyte pixels, where the particular "white" pixel is unique to the original work, and no reasonable fact-finder could hold that the later word accidentally stumbled onto exactly that pixel. The second thing that has to be established is that the degree of copying "matters", starting with Perris v. Hexamer, so that to be infringing, the degree of copying must be more than minimal. Courts have long relied on the notion of "substantial similarity", where you know it when you see it, that is, ordinary observation would cause it to be recognized as having been taken from another work. There is no bright line drawn by Congress of SCOTUS regarding how much copying is "material". It is extremely unlikely that a reasonable line could be drawn that would render single-pixel copying "material". | It's hard to say, under the Twitter TOS. They do not claim that copyright is transferred to them: "You retain your rights to any Content you submit, post or display on or through the Services. What’s yours is yours — you own your Content (and your photos and videos are part of the Content)". But you do license the content: By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. You agree that this license includes the right for Twitter to provide, promote, and improve the Services and to make Content submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content on other media and services, subject to our terms and conditions for such Content use. Such additional uses by Twitter, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Services. The totality of conditions, including the Twitter Rules, is ever-evolving and not apparently contained in a single link. From what I can tell, there is no condition that prohibits a user from copying tweets into a book. There are numerous statements about "respecting copyright" which refer to taking material that is not licensed to Twitter and redistributing: nothing about redistributing licensed material.A plain reading of the first bold sentence says that you can make your content available to the world, not restricted to "retweeting". |
GDPR, is scrolling the page can mean cookie acceptance? For example take a look at https://www.cookiebot.com/ as soon as you scroll down a bit, the consenting options fades away, and it puts a cookie in your browser, that you accepted their cookies. Is this acceptable by the GDPR / ePrivacy regulation, as a cookie and tracking (analytics, fb pixel) consent? | No. According to GDPR consent must be: Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement Scrolling down is not a clear, affirmative, specific or unambiguous indication of consent, and therefore does not fulfill the requirements for GDPR. | As always, it depends. However, it is by no means certain that any public facing hobby project, such as a web app, is exempt from having to comply with the GDPR. Since the GDPR is only a few days old, we have of course no case law based upon the GDPR itself yet. However, when considering this, one should take the following two facts into consideration. 1. The "personal use exeption" in the GDPR is not new. The personal use exemption is unchanged from the article 3(2) of Directive 95/46/EC. (There as a lot of lobbying for removing "purely" from the sentence – but drafters wanted to keep it.) 2. Case-law under the previous regulation restricts the scope of the exception The ECJ has ruled on the scope of the personal use exception in two cases: C-101/01 C-212/13 In both these cases, the ECJ took an extremely restrictive view, and concluded that the personal use exemption did not apply to the processing done by these individuals. In C-101/01 it can be argued that the hobby project as a blogger was connected to the controllers professional activity (she was a catechist in a local church, and blogged about her work. including her colleagues). But in C-212/13, there no such connection to professional or commercial activity. Here, the controller operated a CCTV to protect his home, but set it up to also capture public space, and that was enough for the ECJ to decide that the personal use exception did not apply. Discussion Case-law based upon Directive 95/46/EC is in no way binding for a future court that need to rule based upon the GDPR. We need to wait for case-law decided under the GDPR to be able to have some degree of certainty about the scope of the "private use exception" under GDPR. However, given what we know about how the ECJ has ruled in these cases in the past, I think it is hazardous to think that just because what you are doing on the web is just a "hobby project" not connected to professional or commercial activity, you are exempt from complying with the GDPR. Conclusion IMHO, you may be exempt, or you may not be exempt. I think it really depends on your activity in your hobby project, and to what extent this project processes the personal data of other people than yourself. | It doesn’t make you exempt from the GDPR if that’s what you’re asking The hash you produce is linked to one (or a small number) of computers and it therefore serves as an ID number. Because that ID number is linked to the owner of the computer it is personal information and if you are collecting it, you must comply with the requirements of the GDPR - valid legal reason, deletion when no longer required, deletion on request, data security etc. | You clearly cannot provide data that you haven't stored – and not storing data is a good thing under the Art 5(1)(c) Data Minimization Principle. Despite the Art 20 data portability right being conditional on that the data subject has provided data and not on that data has been stored, I think responding to such a request with “sorry, as per our privacy policy we do not store this data” would be perfectly fine. It is also curious that you are using consent as the legal basis for the purpose of selecting the website language. How do you obtain consent from visitors? How can you prove that you got consent? In many ways, consent is the legal basis of last resort, and I'd think that legitimate interest would be a much more straightforward approach in your case. | The ePrivacy directive (Article 5(3)) requires prior informed consent for storage (or access) of information stored on a user's terminal equipment. In other words - you must ask users if they agree to most cookies and similar technologies before the site starts to use them. That is not always technically possible or creates catastrophic UX, so take a close look at which cookies are exempt from consent according to the EU advisory body on data protection: Opinion 04/2012 on Cookie Consent Exemption (original, dead link) (user‑input cookies (session-id), authentication cookies, user‑centric security cookies, multimedia content player cookies, user‑interface customisation cookies, third‑party social plug‑in content‑sharing cookies etc.). Update 2019: Europe’s top court says active consent is needed for tracking cookies. There are few exemptions of cookies that generally do NOT require consent: User input cookies, for the duration of a session Authentication cookies, for the duration of a session User centric security cookies, used to detect authentication abuses and linked to the functionality explicitly requested by the user, for a limited persistent duration Multimedia content player session cookies, such as flash player cookies, for the duration of a session Load balancing session cookies, for the duration of session. User interface customisation cookies, for a browser session or a few hours, unless additional information in a prominent location is provided (e.g. “uses cookies” written next to the customisation feature | How can I truly say that I 'consent' to data collection and processing when I am coerced, so to speak, by the threat of failing my courses if I do not use this novel software? There is no need for you to "consent". Consent is just one of the reasons that allows a data processor to collect your data. There are other reasons that allows the data processor to capture your data. In this case, it seems of application the "legitimate interest clause", as it is in your university's legitimate interest to capture your activity in order to evaluate you. Of course, that covers only the data collected that is relevant to that interest. They will certainly capture your identity and your answers, they may log your sessions and may try to gather some data to detect if you are somehow cheating, but they would not be allowed to check which are your favorite pornhub videos because that is not relevant for the university's legitimate interest. Art. 6 of the GDPR states: Processing shall be lawful only if and to the extent that at least one of the following applies: (a) the data subject has given consent to the processing of his or her personal data for one or more specific purposes; (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; (c) processing is necessary for compliance with a legal obligation to which the controller is subject; (d) processing is necessary in order to protect the vital interests of the data subject or of another natural person; (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. This page also provides some in-depth analysis | GDPR is not a blanket ban on the handling of personal data. It is a set of guidelines when and how data may be processed and stored. Documenting the compliance with a deletion request is one of many purposes for which some data may be retained after a deletion request. Others would be past contractual obligations, legal documentation requirements, and even a balance of 'legitimate interests' of the processors and the data subjects. The processor might be able to argue that fraud/abuse prevention is such a legitimate interest. What if I want to create a service that does let users enter their friends' email addresses, and send those friends an email invitation to the service? Get a specialist lawyer on staff who can check your exact business processes. A web site like this cannot possibly give you a full explanation of the pitfalls. | The line they'll rely on for GDPR compliance is the first part of that sentence - "If you agree to this during the order process", which suggests that there will be a separate request to opt in to marketing communications at some other time in the process. Check any order documents. There's likely to be a tick box or similar on at least one. If that implies opting out rather than opting in there may be grounds to argue with that under GDPR, but there's nothing in the quoted text that suggests a problem. |
Clause in contract - is there a law protecting me from a landlord abusing it? Context So, I'm going through the process of creating a shorthold tenancy with a private landlord in the UK. We've done our references and now are down to signing the contract. Everything in the contract is fine and pretty standard except there seems to be a clause that has potential to be used as a blanket clause at the landlords discretion for any situation. Clause 3.3 The tenant must not use the Property for any illegal, immoral, disorderly or anti-social purposes. Obviously we're not planning to Graffiti up our neighbours flats or anything of the sort. I'm just curious to know if there are any laws protecting me as a tenant from the landlord abusing that i.e immoral is certainly subjective and realistically he could find anything he doesn't like immoral? Question Do any laws exist to ensure there is a limit on what can be considered reasonable? If not, am I within my rights to ask the landlord to expand on that clause to ensure there is no doubt between the two parties? | Under an AST agreement the landlord is not permitted to evict you on a whim - if you refuse to leave, in order to 'take possession' the landlord must persuade a court to give him a court order. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/applying_for_possession_assured_tenancies In the fixed term the landlord must first serve the tenant a 'section 8 notice' with a 'ground for possession' (there are 20). https://www.legislation.gov.uk/ukpga/1988/50/schedule/2 http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies Were you to refuse or fight it a court would determine whether the landlord may take possession on the ground in the section 8 notice. That particular clause you are concerned about is common to the AST agreements I've seen. See for example the government's model agreement: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/695944/Model_Agreement_for_an_Assured_Shorthold_Tenancy_and_Accompanying_Guidance.docx The guidance isn't specific about "illegal, immoral, disorderly or anti-social purposes" but examples elsewhere include prostitution in the property (doing it yourself or allowing it to be done) or it being used to store stolen goods. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies/discretionary_grounds_assured_tenancies#7 I'm just curious to know if there are any laws protecting me as a tenant from the landlord abusing that i.e immoral is certainly subjective and realistically he could find anything he doesn't like immoral? It is unrealistic to assume the landlord can take possession based on saying anything he doesn't like is immoral. Do any laws exist to ensure there is a limit on what can be considered reasonable? Statute isn't specific about what's "reasonable". Ultimately what's reasonable is what the court says is reasonable. You can look at case law. http://england.shelter.org.uk/legal/security_of_tenure/assured_tenancies/ending_an_assured_tenancy/grounds_for_possession_assured_tenancies/discretionary_grounds_assured_tenancies#1 If not, am I within my rights to ask the landlord to expand on that clause to ensure there is no doubt between the two parties? You are free to ask the landlord what that clause means and to define it specifically - the landlord is free to do so or walk away from the deal. Consider that landlords tend to want tenants who will pay on time, keep the property clean and warn them about maintenance problems - I doubt the majority have any interest in their tenants' private lives that the landlord comes to know about unless the landlord anticipates an economic impact. | Probably not. Overview You haven't specified a jurisdiction. I will talk about Australia because that's what I'm familiar with. In Australia the most relevant area of law would be tort, specifically negligence. The university would be liable to pay damages if a court found that it owed a duty of care to your friend, that it breached that duty, and that your friend suffered injury ('injury' including loss of property as well as mental suffering) as a result of that breach. Also potentially relevant would be contract law, if your friend and the university had entered into some kind of agreement relating to his security, or equity, if the university had somehow acted to lead your friend to rely, to his detriment, on the university protecting him (promissory estoppel: Walton Stores v Maher). However, I think this is unlikely unless, for some reason, the university had put up signs saying 'Please come onto our land and we will be responsible for your security'. Negligence You have stated that 'it is their responsibility to make sure all students are safe on campus.' It is not clear whether you mean to state that as a fact or whether you are suggesting it as a possible hypothetical basis of liability. I am not aware of a case that establishes the proposition that universities do have such a duty. The judgments in Modbury Triangle Shopping Centre v Anzil (2000) 205 CLR 254 discuss the liability of the occupier of land (such as the university in your example) for injuries inflicted by criminals upon people present on land (such as your friend in your example). In that case, the defendant ran a shopping centre. The plaintiff worked at a shop in the shopping centre. At the end of the plaintiff's shift at 10.30pm, it was dark outside because the shopping centre switched the lights in the car park off at 10pm. The plaintiff was mugged in the shopping centre car park on his way out to his car. The key question there was whether the defendant shopping centre was under a duty to keep the lights on for workers leaving work (along with the question of how the failure to illuminate the area led to the attack i.e. whether the plaintiff still have been mugged if the lights were on). Therefore the question that we are presently interested in, about an occupier's responsibility to protect visitors, is only dealt with as a side issue in that case. But the principle is pretty well-established that, generally, you are not responsible to protect another person from the criminal acts of a third person. The common law has a strong presumption against imposing liability for 'omissions' as distinct from acts, which is another way of saying that the courts don't want people being liable to run out into the street and help people. See paragraphs 27 and 28 and thereabouts in Modbury Triangle. Particular relationships may exist which create such a duty. One is in relation to school children; the school is responsible for taking such care of the child as a parent would. The relevant features of this the school-child relationship include the child's vulnerability as a child and the way the school controls their movements and enviroment during the school day. I presume that your friend is not a child and the university does not control his or her movements. Therefore a court is likely to be looking at the general principle that the university is not responsible for protecting people from the criminal acts of strangers, and then looking (and probably not finding) any special feature of the relationship between your friend and the university that creates an aspect of vulnerability, reliance or control that makes it reasonable to impose a duty of care. Some people think that there is a general principle that if something bad happens to them, some identifiable person with cash must be responsible for paying compensation, whether that is an insurer, the government or a nearby corporation. The common law has not picked up that principle. The common law would slate the responsibility home primarily to the mugger. Sue them. What does the university have to do with it? Conceivably the university might also be liable along with the mugger, but the fact that an injury occurred and nobody else can in practice be held responsible does not in itself make the university liable. As mentioned by Pat W., there may be some other feature that creates a duty, such as if the university had made some change to the environment that allowed made the attack to occur when it wouldn't otherwise have e.g. moving your friend's dormitory so that the only entrance was through a dark alley, or if the attack occurred inside a university building where the university controlled entry (even then not sure that would get your friend over the line). | When a contract states a thing that you get for a stated price, that means you should get the thing described, and you pay the stated price. If the landlord makes a mistake and wishes he had charged more, he can wait until the end of the lease period and then increase the price as he desires. He cannot raise the price until the end of the contract, and cannot retroactively charge that increase. (It's impossible to imagine there being contract language that allows that outcome, but we will assume there is no such clause). If the stated area is not as stated, especially if the area is actually smaller, the landlord is in breach of the contract, and could be sued for damages. It would depends on how different the areas are, when it comes to assigning damages. For example, 4 sqm in a unit with 800 sqm is not likely to result in any loss to the tenant. If the unit is bigger than stated, the prospects for damages are even less, perhaps a bit for added heating cost. Either way, if the size is incorrectly described, that is the landlord's fault, though probably not worth bothering with a lawsuit. | user662852 has a good point -- whoever own the property has the right to make the rules. Is the property, land+construction in fact your's or does it belong to the HOA who just grant you access as a lease holder? Different states has different rules, but in my state it is illegal to maroon a property and there must be a access to public streets even when this necessitate passing over somebody else land. However that is irrelevant if the HOA owns the land your house is build on. I think you will have to look at your HOA agreement and see what it says. | Yes; While contracts can be made in written and oral form bigger acquisitions normally are in written form. Also consider this: They can't prove that they told you that the balcony is not usable. Thats a big negative in buying a property and they would need to have it documented. If they still refuse consider seeking professional help. In my country lawyers offer "fast help" that isn't legally binding but costs you only 10$ and helps you finding out if your case has any possibility to get accepted/if you're right. EDIT: Regarding the reservation fee: You can dismiss that. You didn't reserved that object, you reserved a house with balcony. | Is there any way I can persuade the new landlord to start renting apartment as close as possible to the end of 30-day period? If you already signed a contract with the "immediate move-in" clause, it is going to be difficult to persuade the new landlord. That is because the landlord would have no incentive to postpone his source of income and there is no statute or legal provision available to you on that. If you have not signed the contract, then you two can still negotiate until either party leaves or you reach an agreement. Under contract law, the latter is referred to as knowingly and willfully entering a contract. | A lease of land is not the same as a residential lease, the latter being strongly regulated by special laws. So caveat emptor is the default rule for land leases (see this article). You have to look at the laws of your state, but let's take Washington as an example. This is not a residential tenancy which is subject to different laws, it's just leasing land, similar to leasing a chainsaw or a car. Your implied warranty would be that the land is fit for the ordinary purposes for which land is used, and that is all. It might be worth wondering about whether building a cabin on the land changes your property tax liability. | Possibly In most contracts, the parties sign in their capacity as people (or agents for other people). However, some contracts are signed in the capacity as the owner of a piece of land and the contract transfers with the land. The liability rests with the current owner and, if unpaid, creates a lien over the property. These are particularly common in contracts with utilities or where the contract involves the a structure on the land. Surprise, surprise, the situation you describe involves both. You need to refer back to your contract for the land as these types of contracts are usually disclosed (unless they are a function of local law because everyone just knows - I don't know anything about Pa. law on this) and the original contract with the gas company. Your settlement may have also involved you paying a figure to purchase the gas in the tank as at the date of settlement. For example, in new-south-wales, council rates and water rates attach to the land as a matter of law and the vendor pays the purchaser for any amount they have paid in advance (or vice-versa if they are in arrears). Electricity and piped gas don't; the vendor ends their account on or before settlement and the buyer opens a new account on or after settlement and each pays for their own use. Propane for portable bottles doesn't but for fixed installations does as a matter of contract with the gas company. |
Private renting: landlord asking me release the deposit early I started privately renting a property in 2014. The first year was arranged through a letting agent, to whom I paid the deposit (£810) and fees directly. When I renewed the lease in 2015 the landlord asked me to renew directly with them, rather than going through the agent, which I did and have done every year since then. I recently renewed the lease again for a year. The landlord contacted me yesterday asking me to get in touch with the letting agent to ask them to release the deposit to them so they can hold it under their own account. The deposit is held by a third party called the Deposit Protection Scheme. The landlord is asking that I release the money directly to them, which they will then deposit in the DPS themselves. My questions are: can the landlord ask me to do this? And should they? Is there anyway I can protect myself in this instance? | So just to add some closure, I had a response from the deposit protection scheme and they said I could simply transfer the account between the two parties. I told my landlord of this and they then said they would drop the issue entirely. | If it's not in the lease agreement, then you did not agree to it. Even in the absence of the law prohibiting the late fee, the landlord would not be able to impose it because it is not in the lease. It is of course up to you whether you want to test it. It may be more trouble than it is worth. Then again, it's probably not worth the landlord's trouble to begin eviction proceedings over a late fee. Paying late and refusing to pay the fee would probably sour your relationship with the landlord, which is usually something you want to avoid. If you do pay late at some point, you may want to point out to the landlord the relevant provision of Massachusetts law. The matter would probably end there: either the landlord doesn't know about it, or the landlord is hoping that you don't know about it. Pointing it out in a polite manner will inform the landlord of the law and that you are acquainted with the law. Unless the landlord is quite unreasonable, that should take care of it. Whether there is any law prohibiting landlords from announcing an intention to take a prohibited action is indeed a different question. Is there any legal reason for me to bring this up and get the landlord to formally acknowledge that they will not in fact charge illegal late fees? No. You have a contract with the landlord that already says you are going to move in. He cannot modify that contract simply by sending you a letter. | It is usual for a lease to specify for what purposes and on what notice the landlord is entitled to access. Often there is a provision allowing the landlord access on no notice in an "emergency" which is often not specifically defined. Access for purposes of repair, and for purposes of inspection may be on 24 hours notice, or 48 hours, or some other period, or on "reasonable notice" with no specific period specified. Access for a reasonable purpose (such as inspection) on reasonable notice that does not actually inconvenience the tenant, and that is not demanded with unreasonable frequency will probably not constitute such a breach as to justify ending the tenancy, and may well not justify sizable damages in the absence of other breaches. Much will depend on the wording of the lease or rental agreement, and on the practice of the local courts. One might well ask oneself "what actual harm will an inspection with insufficient notice do me" because a court might ask a similar question if an action is brought. If the inspection does cause a problem, then that should be addressed. | I haven't listened to the podcast, but this is probably referring to the anticipated "Renters Reform Bill". A white paper was published on 16 June 2022. There is no Bill before Parliament yet, so the mooted changes are quite a long way from happening. (Additionally, the usual political churn may mean that this does not happen at all. The Secretary of State has already changed, and will likely change again once there is a new Prime Minister; political priorities may shift in all sorts of ways; there could be a general election; etc.) One proposal from the government is (section 3.1): We will abolish Section 21 evictions and simplify tenancy structures. To achieve this, we will move all tenants who would previously have had an Assured Tenancy or Assured Shorthold Tenancy onto a single system of periodic tenancies. Tenants will need to provide two months’ notice when leaving a tenancy, ensuring landlords recoup the costs of finding a tenant and avoid lengthy void periods. This will provide greater security for tenants while retaining the important flexibility that privately rented accommodation offers. This will enable tenants to leave poor quality properties without remaining liable for the rent or to move more easily when their circumstances change, for example to take up a new job opportunity. Landlords will only be able to evict a tenant in reasonable circumstances, which will be defined in law, supporting tenants to save with fewer unwanted moves. Currently, tenants on an AST cannot leave their tenancy during the fixed term, unless the tenancy agreement specifically provides for this with a "break clause". A break clause might say that after six months, the tenant is allowed to terminate the arrangement with one month of notice to the landlord. Or there might be no break clause at all, so that the arrangement can end early only if the landlord and tenant agree ("surrendering the tenancy"). Once the fixed term ends, it can be renewed for another fixed term, or terminated, or else it rolls on to become a "periodic tenancy", typically month-to-month. The tenant can give notice to quit during this time. The government's proposal seems to amount to having no initial fixed term, but a statutory periodic tenancy from the get-go. As far as timing, the white paper says: We will provide at least six months’ notice of our first implementation date, after which all new tenancies will be periodic and governed by the new rules. Specific timing will depend on when Royal Assent is secured. To avoid a two-tier rental sector, and to make sure landlords and tenants are clear on their rights, all existing tenancies will transition to the new system on a second implementation date. After this point, all tenants will be protected from Section 21 eviction. We will allow at least twelve months between the first and second dates. Again, the Bill has not been introduced to Parliament or even published in draft, so Royal Assent is a long way off. | There is nothing in that contract that says anything about 3 months notice period. The 3 months is the legal default for contracts that do not expire on their own, unlike yours, that has all properties of a limited time contract. I would personally see the detailed description of how you can end this contract as overriding any legal default. But as always, with this specific contract in the original language, you need to see a lawyer to know for sure. Your contract clearly states: you can leave your appartment whenever you want, even before the agreed upon time. If you leave between the 15th and the end of a month, you have to pay for that month in full. If you leave between the 1st and the 14th of the month, you have to pay the fair share of the rent for the days you where there. So for example, on a 30 day month if you lived there for 10 days, you still have to pay a third of the rent and the landlord will return the rest if you paid for the month in advance. If you live there for 16 days, you have to pay for the full month and nothing will be returned if you paid for the month in advance. Please note that you need to "hand over" the vacated rental object during normal business hours. So don't go in there on the evening of the 14th at 16:59. And don't try to "hand it over" when you haven't moved your stuff out yet. At the hand over, you give the keys to the landlord and that is it, it is the last thing you do. Very likely your landlord will want to have a look at the rental object while you are there, so they can make sure it is all in order, you did not damage it or did not leave any of your stuff. Generally speaking, there is nothing your landlord could do to you if you decide to leave early. They cannot make you leave even earlier or any other retaliatory shenanigans you may have heard of in other countries. In Germany, such contracts are not adversarial. You don't need to keep it a secret to the last second. If you know you want to leave on a certain date, inform your land lord, make an appointment for the "hand over" well in advance and save yourself (and them) all the stress from doing things last minute. | You are responsible The “public mains” are the infrastructure owned by the utility (and are the utility’s maintenance problem). From those, to the point where it enters the building (or your unit for a multi-unit building), they are the landlord’s problem. Within your leasehold they are your problem. Notwithstanding, a leaky tap is probably a worn washer which is caught by the “fair wear and tear” clause anyway. | You bought the item following the instructions of the landlords, and they are paying for the item (specifically, reimbursement). So, you were acting as an agent for the landlords, and the item is theirs. Of course, you could withhold it until you get paid (unless your agreement specified otherwise). | When screening potential tenants, what is the proper way to turn them down, and the legal implications if the tenant asks for more details? The "proper" way to turn someone down depends on why you decided to turn him or her down. As long as you did not decline to rent to a tenant because of information you learned in a credit report or commercially available criminal background check, you are not required to notify them. However, it is a good business practice to notify them in writing as Nij's post suggests. However, it would be a good idea to keep a copy of the letter for you records and possibly write down some notes. Such as, "other applicants had higher income," or "could not verify rental history." These kinds notes one the letters you mail out will be you friend should you ever be accused of improper discrimination on the basis of race, gender, religion, etc.. Declining to Rent Based Upon a Credit Check or Commercially Available Background Check: The federal law that governs credit checks and commercially available background checks is the Fair Credit Reporting Act ("FCRA"). The FCRA regulates "consumer reports," which includes credit reports and criminal background checks that are assembled by companies. (The FCRA does not apply if you, yourself, are going to the state police or courthouse to get background check records). Under the FCRA, requires that people who make decisions against someone based on information in a credit or background check, notify that person. The FCRA calls this decision against someone an "adverse action" and requires that you provide the affected party the following information: The name, address and telephone number of the company that supplied the consumer report, including a toll-free telephone number for companies that maintain files nationwide; A statement that the company that supplied the report did not make the decision to take the adverse action and cannot give the specific reasons for it; and A notice of the individual's right to dispute the accuracy or completeness of any information the company furnished, and the consumer's right to a free report from the company upon request within 60 days. The FCRA calls this notice an "Adverse Action Notice." See 15 U.S.C. 1681m. An adverse action notice can be oral, written, or electronic. Obviously, written or electronic would be the best since you can prove that it was sent. Also, be aware that the FCRA has civil penalties if it is violated. The Federal Trade Commission has a helpful guide that lists some of the basics of when you do and do not need to provide adverse action notice. Website: Using Consumer Reports: What Landlords Need to Know Brochure: FTC Facts for Business However, it does not cover criminal background checks, which have many of the same rules as the credit checks under the FCRA. |
Can the executor of a will be the sole beneficiary? In the United States, can the executor of a will be the sole beneficiary? | No state prohibits the executor of a will from being the sole beneficiary. There are generally rules in the various states that the executor must be over 18 and not judged incompetent; there may be rules against felons or non-residents being executors. A person could be excluded as executor in some states (e.g. Texas) if there is a conflict of interest, but being sole beneficiary is not a conflict of interest. | Bob's will leaves everything to Abby. Bob has a brokerage account solely in his name with no TOD on the account. Bob then dies. It is my understanding that for Abby to get the money, you have to go through probate. Am I right about that? Yes, this has to go through probate. I have been told that when you are leaving everything to a spouse you can skip probate. I am thinking that is wrong. You are correct. This said, in a very small dollar estate (e.g. $20,000, with the actual dollar amount varying state by state), some states allow you to transfer assets by affidavit rather than via the probate process, if the sold heir at all and will beneficiary are the same and there are no unpaid creditors with a claim against those funds. New Jersey has two sets of small estate procedures for estates under $50,000. The cutoff is sometimes $10,000, sometimes $20,000, and sometimes $50,000 depending upon the circumstances and the nature of the simplified process sought. It isn't clear to me that they apply in cases where the decedent has a will and therefore is not intestate. Small Estates General Summary: Small Estate laws were enacted in order to enable heirs to obtain property of the deceased without probate, or with shortened probate proceedings, provided certain conditions are met. Small estates can be administered with less time and cost. If the deceased had conveyed most property to a trust but there remains some property, small estate laws may also be available. Small Estate procedures may generally be used regardless of whether there was a Will. In general, the two forms of small estate procedures are recognized: Small Estate Affidavit -Some States allow an affidavit to be executed by the spouse and/or heirs of the deceased and present the affidavit to the holder of property such as a bank to obtain property of the deceased. Other states require that the affidavit be filed with the Court. The main requirement before you may use an affidavit is that the value of the personal and/or real property of the estate not exceed a certain value. Summary Administration -Some states allow a Summary administration. Some States recognize both the Small Estate affidavit and Summary Administration, basing the requirement of which one to use on the value of the estate. Example: If the estate value is 10,000 or less an affidavit is allowed but if the value is between 10,000 to 20,000 a summary administration is allowed. New Jersey Summary: Under New Jersey statute, where as estate is valued at less than $50,000, a surviving spouse, partner in a civil union, or domestic partner, may present an affidavit of a small estate before the Superior Court. Upon the execution and filing of the affidavit, the surviving spouse shall have all of the rights, powers and duties of an administrator duly appointed for the estate. New Jersey: New Jersey requirements are set forth in the statutes below. TITLE 3B ADMINISTRATION OF ESTATES–DECEDENTS AND OTHERS 3B:10-3. When spouse, partner in a civil union, or domestic partner entitled to assets without administration. Where the total value of the real and personal assets of the estate of an intestate will not exceed $50,000, the surviving spouse, partner in a civil union, or domestic partner upon the execution of an affidavit before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the assets are located, or before the Superior Court, shall be entitled absolutely to all the real and personal assets without administration, and the assets of the estate up to $10,000 shall be free from all debts of the intestate. Upon the execution and filing of the affidavit as provided in this section, the surviving spouse, partner in a civil union, or domestic partner shall have all of the rights, powers and duties of an administrator duly appointed for the estate. The surviving spouse, partner in a civil union, or domestic partner may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall state that the affiant is the surviving spouse, partner in a civil union, or domestic partner of the intestate and that the value of the intestate’s real and personal assets will not exceed $50,000, and shall set forth the residence of the intestate at his death, and specifically the nature, location and value of the intestate’s real and personal assets. The affidavit shall be filed and recorded in the office of such Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.1; 2004, c.132, s.77; 2005, c.331, s.24; 2015, c.232, s.1. 3B:10-4. When heirs entitled to assets without administration Where the total value of the real and personal assets of the estate of an intestate will not exceed $20,000 and the intestate leaves no surviving spouse, partner in a civil union, or domestic partner, and one of his heirs shall have obtained the consent in writing of the remaining heirs, if any, and shall have executed before the Surrogate of the county where the intestate resided at his death, or, if then nonresident in this State, where any of the intestate’s assets are located, or before the Superior Court, the affidavit herein provided for, shall be entitled to receive the assets of the intestate of the benefit of all the heirs and creditors without administration or entering into a bond. Upon executing the affidavit, and upon filing it and the consent, he shall have all the rights, powers and duties of an administrator duly appointed for the estate and may be sued and required to account as if he had been appointed administrator by the Surrogate or the Superior Court. The affidavit shall set forth the residence of the intestate at his death, the names, residences and relationships of all of the heirs and specifically the nature, location and value of the real and personal assets and also a statement that the value of the intestate’s real and personal assets will not exceed $20,000. The consent and the affidavit shall be filed and recorded, in the office of the Surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the Surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S.46:14-6.1 to take acknowledgments or proofs. amended 1983, c.246, s.2; 2004, c.132, s.78; 2005, c.331, s.25; 2015, c.232, s.2. The consent and the affidavit shall be filed and recorded, in the office of the surrogate or, if the proceeding is before the Superior Court, then in the office of the clerk of that court. Where the affiant is domiciled outside this State, the surrogate may authorize in writing that the affidavit be executed in the affiant’s domicile before any of the officers authorized by R.S. 46:14-7 and R.S. 46:14-8 to take acknowledgments or proofs. | No Pennsylvania law § 2104 requires: (10) Requirement that heir survive decedent for five days.--Any person who fails to survive the decedent by five days shall be deemed to have predeceased the decedent for purposes of intestate succession and the decedent's heirs shall be determined accordingly. Now, a will can provide contingencies for if an heir predeceases the testator such as flowing to the heir's spouse or children but if it doesn't then the heir is treated as non-existent and what would have been their bequest is dealt with by the other provisions of the will. The life annuity is not a part of the grandfather's estate and the funds will be distributed in accordance with the terms of its own contract, not the will. Usually, this means at the discretion of the trustee and nominations of beneficiaries are usually non-binding on the trustee; that is, they can distribute the funds as they believe the decedent would want. Your aunt should seek proper legal advice quickly. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | This is a close call, in the example that you suggest, because it won't have been executed with the proper formalities and it isn't clear that the content at a url would be fixed in its language at the time that the Will is executed. Subject to an exception for personal property memorandums (and a more subtle one for powers of appointment in trusts) you can't change the terms of a Will once it is signed except by a Codicil executed with the same formalities. Certainly, the best practice would be to assume that the answer is no. There are times when a reference to an external document in a will is allowed (e.g. a reference to real property by address rather than a full legal description found in a recorded deed), but a list of beneficiaries would ordinarily not be allowed unless it was effectively a reference to vital statistics records (e.g. "all children born to or adopted by me.") In general, references to external documents are not allowed when used to establish the nature of the testator's donative intent (a "testator" is someone who writes a will), unless it "describes the writing sufficiently to permit its identification" and can't be modified after the Will is signed, but can be used to establish general facts about reality. One exception in Colorado is that a "personal property memorandum" designating who will receive specific items of tangible personal property can be incorporated by reference and does not have to be executed with the same formalities as a will. It isn't clear to me if a url could be a valid personal property memorandum and that issue has never been tested in Colorado. Colorado's probate laws are based on the Uniform Probate Code and would be substantially identical to any other jurisdiction that adopted the Uniform Probate Code's substantive provisions. The primary statutes governing this (which aren't necessarily easy to understand without context) are: Colorado Revised Statutes § 15-11-502. Execution--witnessed or notarized wills--holographic wills (1) Except as otherwise provided in subsection (2) of this section and in sections 15-11-503, 15-11-506, and 15-11-513, a will shall be: (a) In writing; (b) Signed by the testator, or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and (c) Either: (I) Signed by at least two individuals, either prior to or after the testator's death, each of whom signed within a reasonable time after he or she witnessed either the testator's signing of the will as described in paragraph (b) of this subsection (1) or the testator's acknowledgment of that signature or acknowledgment of the will; or (II) Acknowledged by the testator before a notary public or other individual authorized by law to take acknowledgments. (2) A will that does not comply with subsection (1) of this section is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting. (3) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting. (4) For purposes of this section, “conscious presence” requires physical proximity to the testator but not necessarily within testator's line of sight. (5) For purposes of this part 5, “will” does not include a designated beneficiary agreement that is executed pursuant to article 22 of this title. and Colorado Revised Statutes § 15-11-503. Writings intended as wills (1) Although a document, or writing added upon a document, was not executed in compliance with section 15-11-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (a) The decedent's will; (b) A partial or complete revocation of the will; (c) An addition to or an alteration of the will; or (d) A partial or complete revival of the decedent's formerly revoked will or a formerly revoked portion of the will. (2) Subsection (1) of this section shall apply only if the document is signed or acknowledged by the decedent as his or her will or if it is established by clear and convincing evidence that the decedent erroneously signed a document intended to be the will of the decedent's spouse. (3) Whether a document or writing is treated under this section as if it had been executed in compliance with section 15-11-502 is a question of law to be decided by the court, in formal proceedings, and is not a question of fact for a jury to decide. (4) Subsection (1) of this section shall not apply to a designated beneficiary agreement under article 22 of this title. and Colorado Revised Statutes § 15-11-510. Incorporation by reference A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. and Colorado Revised Statutes § 15-11-511. Testamentary additions to trusts (1) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death. (2) Unless the testator's will provides otherwise, property devised to a trust described in subsection (1) of this section is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and is administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death. (3) A revocation or termination of the trust before the death of the testator causes the devise to lapse, but exhaustion of trust corpus between the time of execution of the testator's will and the testator's death shall not constitute a lapse; a revocation or termination of the trust before the death of the testator shall not cause the devise to lapse, if the testator provides that, in such event, the devise shall constitute a devise to the trustee of the trust identified in the testator's will, and on the terms thereof, as they existed at the time of the execution of testator's will, or as they existed at the time of the revocation or termination of the trust, as the testator's will provides. and Colorado Revised Statutes § 15-11-512. Events of independent significance A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event. and Colorado Revised Statutes § 15-11-513. Separate writing or memorandum identifying devise of certain types of tangible personal property Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing shall be either in the handwriting of the testator or be signed by the testator and shall describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will. There is not a statutory definition of a "document" or a "writing" in the Colorado Probate Code. | You are subject to the laws of the jurisdiction that you are in. However, some of the laws of the jurisdiction you reside in or are a citizen of have extra-territorial applicability, so you have to comply with those laws too. | Sadly, her assets will go into probate, and a judge/probate master will have to rule on how they're disbursed. Typically someone will be appointed as Administrator to the mother's estate. The administrator will contact all creditors, assemble and inventory/appraise the assets (i.e. furniture, car, house, bank accounts, etc.) and pay funerary expenses. Since she died intestate, there will be certain specific rules about who inherits the proceeds. The best avenue for the OP is to petition the court to appoint her as administrator of the estate. | Question 1. In the trust that goes solely to my brother, in the event either my mother or father are dead, how is that asset split up? Can a trust dictate how an asset if split up if I am not on the trust. This is governed by the terms of the trust. The trust can say whatever the people who wrote it wanted. Question 2. How is the debt handled? The asset still has debt on it, who is responsible for the debt? I am thinking the answer to this question depends on the answer the Question 1. The trust owns the property subject to the mortgage. The people who originally signed the mortgage (presumably both of your parents) are also personally liable to pay the mortgage in the event that the debt is not fully satisfied in a foreclosure sale, or in the event that the mortgage creditor prefers to sue the mortgage debtors individually in the event of a default. After the death of the mortgage debtors, the mortgage company can file claims in their probate estates for repayment of the mortgage related debt if it does so in a timely fashion, although it would be more common to simply foreclose on the real property and obtain repayment of the debt that way. The death of the mortgage debtors is almost always an event of default under a mortgage, so if both mortgage debtors die, the mortgage creditor can usually force the trust to repay the debt, either by selling the house or by refinancing it. Question 3. They currently live in New York state, I found an article that New York state for nursing home care at more that 12k per year. If they were to move to a cheaper state like Alabama what are the laws or rules, ie. how long they have lived there, assets. This question verges on incoherent. But I think I understand what you are trying to ask. In every U.S. state, the joint federal-state program known at the federal level as Medicaid, although it has different names at the state level (California, for example, calls it "Medi-Cal"), will pay for nursing home care at approved nursing home facilities if the applicants meet state eligibility requirements. This generally involves an income test, an asset test, and a determination that the applicants have not made disqualifying gifts to trusts or to third-parties within the past five years. The income test is based upon state median or average income and is usually lower in a state like Alabama that has a lower median state income, than it is in New York, that has a higher median state income. For retirees, the main kinds of income considered are defined benefit pension plans payments, annuity payments, and investment income. The exact details of the asset test vary somewhat from state to state. Generally speaking, New York State is among the most strict in this regard. The basic outlines of the disqualification for gifts made within five years to others including trusts before applying for nursing home care are similar in broad outline, but the consequences for violating the rules are a function of the average cost of nursing home care in a state, which varies considerably. Generally, a gift of a fixed dollar amount gives rise to more months of disqualification of Medicaid in a state where the costs of nursing home care is low than it does where the costs of nursing home care are high, because the amount of the gift made in the past five years is divided by the average cost of nursing home care at the time the application is made, to determine the number of months that the applicants are disqualified from Medicaid. More generally, setting up trusts intended to qualify you for Medicaid is a highly technical matter with severe consequences if it is done incorrectly, and I would hope that your parents did so while conferring with a competent elder law lawyer. If they did it themselves, there is a high chance that this will have very severe negative consequences. |
How to mention a possibility of litigation/prosecution without accidentally making a "demand with menaces", in English criminal law? In English Law, extortion and blackmail are described under section 21 Theft Act 1968, as an "unwarranted demand with menaces", There's criteria and definitions, but they don't seem to matter much here. For this question the main definitions are from case law, which are broad: with roughly means backed up by and menaces roughly covers any threat to take/avoid some course of action which might coerce an unwilling person. It is the use of a "menace" which creates the crime, not the nature or validity of the demand. Even if the threatened action is valid by itself, the element of backing up or enforcing the demand with a threat to do some action, so that an unwilling person will feel coerced to comply, creates an offence under this section. According to Wikipedia, "menaces" have included, or could potentially include, backing up a demand by stating one will otherwise: reveal a failure to honour a debt, a criminal record, or other adverse fact place a person/company on a blacklist testify or not testify in some matter prosecute/report a crime or refrain from doing so Suppose a person is in a dispute. Taking and avoiding action are both legally permitted. But as a result of this section, it's hard to see what ways remain, in English law, to state the possibility of legal action (or its avoidance), that will avoid risk of prosecution oneself under s.21? To make this more concrete, here are some plausible examples from any fictional dispute, where the police decline to get involved. The injured party may wish to say something like: Repay me/put right tort, or civil litigation: "If you don't return what you took, or compensate me, you will be sued for damages" Repay me/put right crime, or criminal prosecution "If you don't return what you took, or compensate me, you will be prosecuted for theft" Put right statute-barred loss, or my only available route to recompense, which I don't want to be forced to take, is via proceeds of crime/criminal compensation "The 6 year period for damages has expired, we have two choices, either you reimburse me, or my only other way to get repaid for your crime is to prosecute you and apply for confiscation of proceeds of crime, and/or other criminal compensation." Please put this right privately, as other handling would involve courts and be harmful to your future as a student, which neither of us want "I don't want to see a promising student in jail, but unless you repay me I have no choice but to see you prosecuted" Please mediate/settle, so civil case which neither of us will like, can be dropped "I will continue my claim unless you repay what your graffiti cost to deal with" (and is this legally any different from "I will drop my claim if you repay"?) Please suggest settlement otherwise civil and criminal proceedings "I enclose a draft civil case and a draft criminal laying of information. I will file both within 14 days unless I receive a realistic settlement proposal." Job negotiation "Accept this pay cut or you won't have any income at all, because you'll be given notice" In each of these, a reasonable offer/statement of one party's perspective is being stated, with the aim of avoiding legal entanglement. It's quite a significant and real concern, because the Courts positively approve of attempts to settle before claim or before hearing, a dialogue that implicitly says "Agree to pay me this amount that I'd consider acceptable, now, or else or you will be sued / I will continue the case and you will face more costs". It's more serious if the action causing loss or damage was also criminal in nature, and the victim mainly wishes to settle the loss/damage, but has the tempting parallel option of criminal prosecution for the wrong they feel, and needs to avoid the appearance of holding a criminal case over someone's head as a menace. The only other option is to commence civil/criminal proceedings in any of these cases, with no prior discussion/warning, to avoid the possibility, but that may not be what they really wish for. My question: Given the breadth of this section, what form of words can the people thinking of statements like those above, use, to ensure they will not be held to have made a "demand" with a "menace"? Note: Assume any CPS/prosecution-related/procedural issues can be ignored - we don't have to worry if any claim or criminal prosecution would be private or public, accepted or not, or capable/incapable of being withdrawn. The mere possibility of a legal consequence might be enough in English law to create a menace and create the issue in the question. | It is the use of a "menace" which creates the crime, not the nature or validity of the demand. That's not correct. You've inadvertently missed the other element of the offence: that it's an "unwarranted demand". A person is guilty of blackmail if, with a view to gain for himself or another or with intent to cause loss to another, he makes any unwarranted demand with menaces; and for this purpose a demand with menaces is unwarranted unless the person making it does so in the belief— (a) that he has reasonable grounds for making the demand; and (b) that the use of the menaces is a proper means of reinforcing the demand. https://www.legislation.gov.uk/ukpga/1968/60/section/21 For example, I may have reasonable grounds under the Consumer Rights Act to demand a refund for a faulty good. It might be sensible to moderate one's language, e.g. "If I do not receive a satisfactory response from you within 30 days of the date of this letter, I intend to issue proceedings against you in the county court without further notice. This may increase your liability for costs." vs. "If I do not receive the money from you within 30 days of the date of this letter I'll take you to the f***ing cleaners, sunshine." But the language doesn't make the demand unwarranted. | Yes Quite a large chunk of the legal system deals with those general concepts. 27 - pretty much all contract law deals with when and how you must discharge your obligations 28 - ditto, although if it’s not owed until tomorrow … 29 - there are laws against criminal conspiracy 30 - making false accusations can be a crime and can give rise to defamation | Forbearance from action can be consideration, but it must be forbearance from something that is one's legal right. It is sufficient that a person has restricted their lawful freedom of action. See Hamer v. Sidway, (1891) 124 NY 538. A promise to not do something that one has no right to do in the first place is not consideration. Throughout your entire spectrum of examples: there is no contract to breach; the intitial attempted theft was an offence; absent consent, it will never be lawful for John to take the car; any money accepted by John is likely an unjust enrichment. | First degree kidnapping is abducting with various exploitative intents such as ransom, using as human shield, or messing with government function. Second degree kidnapping is any abduction, with an exception if (1) The abduction is not coupled with intent to use or to threaten to use deadly force, (2) The actor is a relative of the person abducted, and (3) The actor's sole purpose is to assume lawful control of that person. "Abducting" is defined as To restrain a person with intent to prevent his liberation by either: a. Secreting or holding him in a place where he is not likely to be found, or b. Using or threatening to use deadly physical force. Given that, the act is probably not abduction there not kidnapping. Unlawful imprisonment in the second degree exists is a person restrains another (with the aforementioned familial custody exception). "Restraining" is To intentionally or knowingly restrict a person's movements unlawfully and without consent, so as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved. Restraint is “without consent” if it is accomplished by: a. Physical force, intimidation or deception, or b. Any means, including acquiescence of the victim, if he is a child less than 16 years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement. Suppose the victim is between 16 and 18, the accused is not a relative etc. Also suppose the victim was was not shoved into the car nor were there threats, but was enticed to enter voluntarily – and then once on the road, the true intent was revealed. E.g. "Let's go to the DQ"; "Okay, sounds fun"; (gets in car, drives past the DQ); "I thought we'd go to the DQ on the other side of the state". This could constitute deception (in particular, which DQ and what the real plan is). So whether this is "restraining" depends on the circumstances. | Depending on the circumstances, it may be irrelevant whether or not the the terms of service contain an express clause dealing with inaccurate information. For example, in England and Wales and Northern Ireland, under section 2(1) of the Fraud Act 2006, if you dishonestly make a representation which is untrue or misleading with the intention to make a gain or cause someone a loss you will commit the offence of fraud. This could arise for example if you give a false name intending to obstruct the other party from being able to pursue you for any breach of your contractual obligations (e.g. non-payment for services). As for whether or not you would breach any clause in the contract requiring you to provide accurate information, it's very hard to say without seeing the exact wording and context of the clause. | The University is probably entitled to put a term like this in its contract. In general, one can waive in advance, liability for negligence, but not gross negligence, willful and wanton misconduct, reckless conduct, or intentional conduct, from the person seeking the waiver. The New Jersey Supreme Court upheld the validity of these clauses in the case of Gina Stelluti v. Casapenn Enterprises LLC (August 5, 2010), which involved a negligence waiver in a contract with a private gym. Also, since this is conditions on an afternoon of fun activities, rather than something mandatory or necessary, this waiver does not appear to be conditioned on giving up a substantial thing to which you are otherwise entitled. If the waiver were conditions upon something which you had an unconditional right to (e.g. a public high school education), it might not be valid because it would not be supported by valid consideration. In contrast, here, you get the right to participate in something fun, which you did not have an unconditional right to have, in exchange for the liability waiver. | Since you asked about any jurisdiction, and presumably any common law jurisdiction, in which one of the elements of theft is the intention to permanently deprive the owner of the property, here's the UK* answer. Regarding borrowing specifically, the UK statute referring to theft - the Theft Act 1968 - provides for this in section 6(1): A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating it if, but only if, the borrowing or lending is for a period and in circumstances making it equivalent to an outright taking or disposal. In other words, a thief may say 'I only wished to borrow it', but that won't necessarily amount to a defence under English law. It depends on how long (s)he borrows it for, and how (s)he treats it while borrowing it. In addition, the case law clarifies what is meant by 'his intention is to treat the thing as his own to dispose of regardless of the other's rights'. This has been held to mean: Selling, Bargaining with. R v Cahill, R v Lloyd Rendering Useless. DPP v J Dealing with in a manner which risks its loss. R v Fernandes, R v Marshall Borrowing in certain circumstances. R v Lloyd Pawning. s6(2) Theft Act 1968 Not enough to just deal with it. R v Mitchell So how do we prove whether someone intended to deprive the owner of the property permanently, or at least permanently enough to amount to an offence under the Act? The answer seems to be that we look at how they deal with it, and what condition they leave the property in. If they do any of the things listed above, with the exception of no. 6, then they have demonstrated an intent to permanently deprive; if they merely use the property, then that isn't enough to show such intent. You asked specifically: I am looking for an answer that explains whether someone who credibly asserts – e.g., by advance sworn affidavit – that they intend to return the item can be convicted of theft, or any other crime, for taking someone else's property for an extended but not infinite period of time. In the case of R v Lloyd, the court held borrowing would become intention to permanently deprive the owner of the property if 'all goodness, virtue and practical value is gone'. So if someone swore they were planning on returning the item, the court could nonetheless convict them of theft if they held on to the item for so long, and treated it as their own to such an extent, that all its value was gone. (In R v Lloyd, the items in question were films, and as they were returned in much the same condition as they'd originally been in, this was held not to be intention to permanently deprive, and therefore not to be theft.) *By 'UK' I mean 'English and Welsh'; the answer may be different in Scotland. | You are deeply confused, probably by the blogs of a conspiracy theorist (perhaps discussing the Sovereign Citizen Movement mentioned in the comments), whom it would be helpful for you to reference. In fact, people with and without lawyers claim common law rights in the ordinary courts of the UK every day, in the lion's share of civil lawsuits. For example: There is a common law right to sue for damages when someone breaches a contract by not paying a bill that they owe. A defendant, meanwhile, has a common law right to defend against such a suit on grounds, for example, that the debt has been paid or that the debt is not owed because there was no agreement to pay in the first place. The substantive right of an owner of real property to evict a tenant who breaches a lease arises at common law, even though statutes spell out the process for enforcing that right. Furthermore, the way that ownership of real property is established (i.e. through a chain of title involving purchases by deeds) likewise arises at common law. The defendant meanwhile has a common law defense to a claim for rent for the remainder of the period in a lease after an eviction for failure of the landlord to mitigate damages if the landlord does not make a reasonable effort to find a new tenant. The right to sue someone who negligently caused an accident that injured you is a common law right. |
Privacy concerns regarding my data on a website Recently, I signed up on this website. As soon as I registered, they sent me an activation email. After seeing the activation email, I was a little disturbed. The activation email consisted of the following info: Activation URL Username Password Yes, they explicitly mentioned my password in the activation email. This is very bad practice because of the following reasons: If I have made a typo in my email then the person who receives the email gets to know my really sensitive info. Even if typo is not there, but let's say, somehow someone manages to get access to my email, he will also now get access to my information on this new website where I registered. Moreover, to the best of my knowledge, user sign-up forms are designed such that the party offering the service doesn't themselves get access to my password (this is usually done by first encrypting the password - one way hashing - and then storing it). But since they sent my password back again to my email, so it is possible that they indeed have access to my actual password. I have submitted a query to them regarding this issue but I am not sure if some action will be taken soon or not. So, I would like to know, in case they don't take any action at all, where can I submit my complaint regarding this? Besides, I am not very confident if I can actually register a complaint because there terms and conditions page doesn't talk about anything related to this. And also, they never asked me if I agree to those terms and conditions. | Because the company that runs the contest is not in the banking or medical industry, or in another business or organization (NGO or governmental) that has to protect personal information by law, your login, email and password can be stored on pieces of paper scattered around their office and it's not illegal. And there are no laws regarding sending your information in plain text in an email. Yes, those are bad security and privacy policies, but they are not illegal. (This may vary by jurisdiction). The TOS (Terms of Serivice) you agreed to are at Eye Win Awards Privacy Policy. Part of it reads: By providing us your Information or by making use of the facilities provided by the Website, You hereby consent to the collection, storage, processing and transfer of any or all of Your Personal Information and Non-Personal Information by us as specified under this Privacy Policy. You further agree that such collection, use, storage and transfer of Your Information shall not cause any loss or wrongful gain to you or any other person. and We cannot guarantee the security of our database, nor can we guarantee that information you supply will not be intercepted while being transmitted to us over the Internet. And, of course, any information you include in a posting to the discussion areas is available to anyone with Internet access. You agree to the TOS and Privacy Policy simply by registering and using the site. This is known as a click wrap (Wikipedia) contract. You can choose to stop using the service, or by the company can choose to void the contract and close your account. You can complain, but it is entirely up to the company to address your complaint or even reply to you. The Grievance Redressal contact in India is at the bottom of the link above. There are probably consumer advocacy groups in India; Google will show you those. | A law has to be "broad" to include a lot of possible crimes and intent of criminals and account for the good faith of non-criminals. "Intentionally access without authorization/exceed" is actually fairly specific; "intent" is the keyword. Someone making a mistake may have intent to login, but no intent to commit a crime. Someone confused by "different pages of demo and live accounts" can easily defend their actions by pointing out that they were confused. It's up to the reasonableness of the pertinent law enforcement and prosecutors to take into account the evidence that reasonable mistakes were made by little old ladies and not charge them with a crime. And for the most part, 98% of the time, law enforcement and prosecutors are reasonable. | The CEO wants to "fool" users You are essentially admitting that the company you are working for is about to deceit its customers and asking whether that is legal. The relevant set of laws is rather sparse and does not give direct answers in regards to oAuth tokens or other details of that level (which is probably making your CEO think he can "handle" the arising questions). Probably the most relevant bit of legislation that applies here is The Federal Trade Commission Act (15 U.S.C. §§41-58) which prohibits unfair or deceptive practices and has been applied to online privacy and data security policies. I am pretty sure that, in practice, if the users take your company to court, it will be held liable because: users are allowing us to read their CRM data and once we get the data, the data become ours, and we can do whatever we want with it. Is this true? While the users are still allowing you to read their data it is completely up to the Terms/EULA what you can do with it. However, once you have made the users think that they have withdrawn your access (e.g. they "deleted" oAuth tokens), you are no longer authorized to read the current data (although the Terms may still allow you to use the old data you obtained when you had access). Silently continuing to access their data without their knowledge/approval is definitely a deceit. The CEO wants us to download all of their emails and store them in our database There would be nothing wrong with that if it was in the Terms. But if it is not, that would be a blatant (and easily punishable) breach of privacy. Note that you may also be held personally liable for this wrongdoing (if/when proved so). "Just doing your job" claim will not work. | Does GDPR prohibit reading unsolicited emails from people who have not explicitly opted in to a mailing list? tl;dr: No. I have never heard of this, and I don't see how this could follow from the GDPR. You should follow up with the Secretary to find out how she came to her conclusion. Detailed reasoning: The GDPR restricts the processing of personal data, so it does in principle cover reading email, since reading counts as "processing", and an email may contain personal data. However, Article 2 (emphasis mine) says that: This Regulation applies to the processing of personal data wholly or partly by automated means and to the processing other than by automated means of personal data which form part of a filing system or are intended to form part of a filing system. I would read this to mean that a human reading emails is only covered by GDPR if the emails are part of a "filing system" or intended to be. So reading the emails is ok, it's only problematic if you intend to systematically store them. Even filing them, while covered by GDPR, would presumably be allowed, because to actually act on the email, you would have to keep it, and Article 6 allows processing of personal data to "take steps at the request of the data subject prior to entering into a contract" and when "processing is necessary for the purposes of the legitimate interests pursued by the controller". One caveat: If the email contains data that falls under special categories of personal data (Article 9) you may need explicit consent for storage. That covers things like racial or ethnic origin, political opinions, religious beliefs and health information. So if someone discloses a health problem or their religious belief in their mail, you may need to ask them for permission to keep it. In summary: At most, GDPR would require you to promptly delete the email once you no longer need it (which could be immediately if the email is irrelevant to you). If the email contains data you legitimately need (e.g. a complaint you need to follow up on), you are allowed to keep it as required (based on Article 6 (f)). Note that in both cases no explicit consent is required from the email sender, unless the email contains particularly sensitive data, such as political/religious beliefs or health data. | Yes, encrypted personal data potentially still is personal data, so some prior thought is necessary. But are you a controller who is processing this personal data? Possibly not. This hinges on what kind of metadata you process, and whether the encryption happens under your authority, e.g. by a software that you provision. If all you can ever get is the encrypted data but not the plaintext, then you can probably treat this similar to pseudonymous or anonymous data. A related example is a postal service. Letters might contain sensitive personal data. But the postal service is not processing the letter contents, and cannot be treated as a controller of this data. (The postal service is prevented by law from processing this data, you are prevented by the encryption). However, a postal service processes personal data like addresses on the envelope. You might want to create a Records of Processing document, which will help you understand what (potentially) personal data you will process. If you are processing patient data on behalf of a healthcare provider, you might want to look into whether you are a controller or a processor. Processor status is not automatic but requires a suitable contract with the controller. As a processor you still have to take appropriate security measures, but you are not responsible for determining the purposes of processing or for responding to data subject requests. | Legal framework Per Articles 4(1) and 4(2) of the UK GDPR, your email address is most likely personal data (and certainly is once you notify the data controller that it belongs to you), and the storage and use of that data constitutes processing. In order to process your personal data, the data controller must establish at least one of the six lawful bases set out in Articles 6(1)(a) to 6(1)(f). It's quite clear that none of those lawful bases apply in this situation. Hence, the processing is unlawful. Next steps Start by making a request to the data controller under Articles 14(1) and 15(1) for the following: A copy of all personal data (including the email address) which they hold in relation to you. The purpose of them holding the data. The legal basis on which they hold the data. That they erase all personal data which they hold in relation to you, pursuant to Article 17(1)(d) (unlawful processing of data). Per Article 12(3), the data controller is required to respond "without undue delay", with an upper time limit of 1 month (or 2 months if they notify you of the time extension within 1 month). Sadly, most data controllers in my experience seem to interpret this to mean that 1 month is the standard time limit, even though technically this is incorrect and the standard limit is "without undue delay". Pursuant to Article 12(6) the data controller can pause the clock by asking you for additional information if they have "reasonable doubts concerning [your] identity". If you send your request from the email address in question then they can't really have "reasonable" doubts, but be aware of this possibility in any case and respond promptly to any requests to confirm your identity so that the clock resumes. Most likely they will be unable to (correctly) provide an answer to points 2 and 3 above, since they do not have a genuine purpose or legal basis. If, after the maximum deadline has expired, they have still not responded and/or erased the data, you have two options: Complain to the ICO under Article 77(1). The ICO has the power under Article 83(5) to fine the data controller up to the higher of 4% of their turnover or £17,500,000. Complaining to the ICO is free and easy and is usually recommended over option 2. Issue a claim in the County Court for a compliance order pursuant to Article 79(1) and Section 167 of the Data Protection Act 2018. You also have the right to claim compensation for "material and non-material damage" (including distress) pursuant to Article 82(1) and Section 168, but this may be unrealistic in the case of a few unwanted emails. Option 2 is not free: you will need to pay a court fee and, unless you represent yourself, legal fees. There may also be additional cost risks if you lose the case. Mentioning the above two points in your request could be an effective way to persuade them to comply in the first place. | It's not illegal to ask. Whether they can give it to you, and under what circumstances, is another, much more complicated matter. For instance, if the database contains health information covered by HIPAA in the United States, or personal information covered by laws like GDPR or CCPA, the customer's ability to share the database may be restricted, either requiring additional confidentiality obligations/use restrictions, or preventing sharing entirely. | Names clearly are personal data and so a good question to ask for GDPR compliance is: Do you need to do what you want to do in order to offer your product or service? For your scenario a common answer seems to be that websites ask for the users first and last name during account creation. The reason is that they need this information to confirm the identity of the account creator. But the public profile only displays a user name that the user can pick freely. In general there is no good reason to publically show the legal names of users so websites don't do it. So for your website ask yourself, why do you want to publically show the names of your users? If you have a good reason to do that specify it in the user terms and go ahead. If you don't have a good reason don't do it. |
Who can claim ownership of pirated goods? I recently got into a discussion about copyright and ownership. The person was arguing that when you illegally copy an item, then the copy is owned by the original author. As such he argues that they can claim it to be theft in addition to copyright infringement. That got me to thinking about pirated physical goods. If a factory produces an identical product such as an iPhone, selling it as such and pay no royalties to Apple. Can Apple then claim ownership of the counterfeits? And if load a harddrive with copyrighted material, can the copyright holders claim that they own the harddrive? This is a generic question, so I'm curious to hear what the laws are around the world. | The owner of IP owns the abstract thing that is protected by law (the intellectual property), and not the concrete product that relied on (illegally) using that abstraction. The person who made the thing, or to whom he sold it, owns the object. If you buy a disk with pirated or non-pirated software, you own the disk, and if you bought it legally, you probably bought a license to use the software. Using "pirated" to refer to the class of things legally manufactured (not stolen, not using stolen components) but in violation of IP law, pirated goods might be subject to seizure by the government (it would be slated for destruction), but the goods would not be the subject of a prosecution for theft. While infringement of IP rights is often called "theft", it doesn't have all of the elements of theft: you do not deprive the owner of the thing that they own. | You are conflating the crime against the state of possession stolen goods with the common law tort against the owner for conversion. To your questions: How would this proceed? It seems like it would be very difficult to prove (short of getting public surveillance footage) that I even bought the item. If you read the second paragraph of the page you linked it says: In many jurisdictions, if an individual has accepted possession of goods or property and knew they were stolen, then the individual is typically charged ... If the individual did not know the goods were stolen, then the goods are returned to the owner and the individual is not prosecuted. Proof of the crime involves a "beyond reasonable doubt" standard of evidence of both the fact that you have the goods and that you knew they were stolen. If you become aware that they were stolen (e.g. the police tell you) and try to keep them then you have just committed the crime. Proof of the tort requires a "balance of probabilities" standard of evidence that you have the goods and that they belong to someone else; your knowledge that they were stolen is immaterial. In the first instance, the police would probably knock on your door, tell you why they were there and ask if the version of the story they have from the thief is essentially true. What happens next depends on your response: "Yes, I knew it was stolen; you better arrest me and I will plead guilty." This will play out as you expect. "Yes, I didn't know it was stolen, I will go and get it for you." You return the goods, give a statement and may have to act as a witness in the prosecution of the thief. You are down $1,000 but are now older and wiser. "No, I have no idea what you are talking about." Well, you have now committed the crime of hindering a police investigation and have also committed the crime of possessing stolen goods - you can no longer claim that you didn't know the goods were stolen; the police have told you they are. What happens next depends on if the police believe you or the thief. Surely they couldn't/wouldn't get a warrant to search my house? Want to bet? They certainly have enough to get a search warrant if they want one (probably). Whether they seek one probably depends on the value of the goods, how busy they are and how much you pissed them off. Could I be prosecuted if I didn't know it was stolen? Not if you return it as soon as practicable after being made aware that they were. The scam This seems like a lot of work for a very small return - spend your time worrying about things that are more likely to happen. Good Title All of this is tied up with the concept of good title. Basically, you cannot gain good title to property from someone who does not have good title themselves; if you buy goods from a thief you do not own them. For example, if A has good title to the goods, B steals them and sells them to C who sells them to D then A still owns them and can demand their return from D, D could demand the return of their money from C and C could do likewise with B but as far as A is concerned it doesn't matter that C & B have lost money; that is simply too bad for them. | You almost certainly can't (successfully) sue Apple because the license agreement that is part of the product you purchased almost surely gives it permission to do so. A tech support based solution would be a better alternative to litigation. | Yes, you do. But you should not base your claim primarily on copyright, but just on the license contract you agreed to. It's typically much easier to prove that a party did not fulfill its part of a sales contract (here: Pay the agreed amount) than to prove violation of a copyright you own. Also, you then only need to sue one guy, and not care about every platform your game might be hosted on. This is particularly difficult here, since they have not done anything wrong. It's not their fault that the publisher didn't properly pay the programmer. They (very likely) got their copy of the game legally. For details, you should consult a lawyer. We can't give you detailed legal advice. | You are creating a derivative work. You are only allowed to do this if the library comes with a license that allows this. If you want to give your derivative work to anyone else, copying it is copyright infringement unless the license allows it. Copying the derivative work and attaching a different license is most likely to be copyright infringement. And if people receive a copy with an open source license that is not justified and rely on it, that’s creating one unholy legal mess for everyone involved and can be massively more expensive than plain copyright infringement. No license means you don’t have permission to do anything with it, not creating derivative work, not distributing it, and certainly not publish it with an open source license. | A receipt is just a written proof that money was taken. It is hard to imagine a place on Earth where the legality of giving such a proof would be questionable at all so that you would need to talk about an "authority to issue receipts". Only if you find a place where money itself is illegal. Now, the real question here is whether such receipts (issued by private persons not registered as businesses) can be used for accounting purposes, e.g. to claim that your business, which transacted with those persons, incurred expenses. The mere fact that sole traders need to be registered to do business does not outlaw the use of receipts issued by non-registered persons. For example, your business could be buying old stuff from the public (used cars, electronics etc.) and refurbishing it. Provided that this activity itself is not illegal, receiving receipts from those one-off private sellers, and using them in your bookkeeping would be perfectly legal too. | Don't get hung up on unauthorized resale. That only prohibits unauthorized resale. Authorized resale is ok. From http://www.justice.gov/usam/criminal-resource-manual-1854-copyright-infringement-first-sale-doctrine: The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction. | Addressing the question of programmer liability, generally speaking, a person who creates something that others use to infringe on copyright is not liable is liable if there are non-infringing uses for the thing (Sony). They can be liable if they intentionally contribute to infringement, viz Grokster one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. End-user liability is different. In order to legally download (watch) anything, you have to have permission from the rights-holder, and from the site operator. The site operator will have terms of service according to which you can access material: if you violate those terms, you are infringing on copyright (you didn't do what the permission to copy required of you). If the site-owner knowingly distributes material without permission, he is an infringer and you have no legal license to copy (watch) that content, so you too are an infringer. If the site-owner unknowingly distributed material without permission and generally complies with the DMCA safe harbor requirements, he is not an infringer but you the user are. Congress has not created an innocent-infringement defense where you can defend yourself against an accusation of infringement by proving that you didn't know that the material was distributed without permission (there is an option to reduce liability for statutory damages to $200 in case of unknowing infringement, but not make all liability go away). |
Is is possible to be prosecuted for lying about race on the US Census? Lying on a US Census is a federal crime. But according the US Census online docs about race: An individual’s response to the race question is based upon self-identification. The Census Bureau does not tell individuals which boxes to mark or what heritage to write in. ... The racial categories included in the census questionnaire generally reflect a social definition of race recognized in this country and not an attempt to define race biologically, anthropologically, or genetically. In addition, it is recognized that the categories of the race item include racial and national origin or sociocultural groups. People may choose to report more than one race to indicate their racial mixture, such as “American Indian” and “White.” People who identify their origin as Hispanic, Latino, or Spanish may be of any race. Which makes it sound as though everybody in the US can put in, say, Alaska Native, on the grounds that self-identifying is a choice, without lying or committing a crime. (Imagine the top TV show in the US was a revival of Nanook of the North, with a terrific charismatic cast, and which promoted "the eskimo way", (akin to the "the cowboy" way in singing cowboy westerns), which advocated that if you followed "the eskimo way", then you too were an eskimo. And alienated Americans resonate with this, as they have with so many fashions, fads and creeds, that that's what they wished themselves to really be.) Is it possible to (unlawfully) lie about one's race given the current US census race categories? In other words, has the 2018 govt. any power to prosecute for lying about race on a census? If there are no lies, what purpose is served by having such a definition? What's the value (who benefits) in making what used to be a fuzzy but more or less factual item about national and ethnic origins into a belief-based one, in effect making race into a religion. This is a spin-off of What are the political benefits and inversely disadvantages, if any, of individually self-identifying as “white” in the United States?. | Short Answer You can be prosecuted for lying about race on the census, but it takes some pretty specific and narrow conditions and isn't a concern for the vast majority of people. Long Answer There are two analytically distinct questions. The first is whether you can lie on the census about race. The answer is "yes", you can lie on the census about race. You would do so by providing an answer that is insincere, which is to say, an answer that is not consistent with how you self-identify. If you believe yourself to be and identify as African-American, for example, but answer "Alaska Native" not because you identify as an Alaska Native, but because you want to screw with the census, then you have lied about race on the census. Similar issues of sincerity have been addressed by the U.S. Supreme Court in the context of the much higher stakes issue of conscientious objector status for someone seeking to avoid the draft. A 2014 law review article explores how courts test sincerity claims in practice. The second is whether you can be prosecuted about lying on the census. There is indeed a law that makes lying on a census form a crime. Refusing to answer either the short Census form or the longer American Community Survey form is a violation of federal law (Title 13, United States Code, Section 221). Refusing to answer is punishable by a fine of $100, while giving false answers carries a fine of up to $500. (As a practical matter, the Census says fines of up to $5,000 can be imposed under Title 18, Section 3571.) So, again, the answer is "yes" you can be prosecuted for lying on the census, but due to the obligation of the census to maintain confidentiality, knowing that a crime was committed or proving that you lied would be hard unless you did something to waive that right to confidentiality. Still, the person about whom the confidential information is maintained by the census can waive this confidentiality. 13 USC 9(a)(3). In practice, a prosecution for lying about race on the census would probably be most viable if, for example, you did a TV interview or posted a YouTube video in which you took video of yourself filling in the race item on your census form with an answer while stating that you didn't self-identify as this race but were just screwing with the government, and then showed yourself submitting that form. Thus, while the prohibition against lying on the census about race is virtually toothless, it does have enough teeth to make it possible to prosecuted someone who openly and publicly defies the requirement to be truthful on the census and admits to doing so, which can still have some utility in discouraging some kinds of open revolts calculated at undermining the integrity of the census. Also, even if you don't "admit" that you are insincere that isn't the end of the analysis. They can't dispute your self-identification with biological facts, but they can dispute that your answer is a sincere self-identification with either your own confession to the contrary or with circumstantial evidence that indicates you are lying (e.g. you fill out every other form before and after with a different answer and have a known animosity towards the census). If a jury believed beyond a reasonable doubt based upon circumstantial evidence that your answer was not sincere, it could find your testimony to be not credible and convict you anyway. If there are no lies, what purpose is served by having such a definition? The vast majority of people, facing no negative consequences for telling the truth, if they have cooperated enough to fill out the form at all, will try to fill it out consistently with the instructions. And, a significant share of all census responses are provided by government employees whose duty and purpose is to try to provide a correct answer. Also, most people comply with the laws even in the face of zero enforcement. For example, it has been more than 40 years since the last person was prosecuted for not filling out a census form, even though it is crime not to do so, in part, because most people try to obey the law. And, compliance with the burden of filling out a census form is quite high. What's the value (who benefits) in making what used to be a fuzzy but more or less factual item about national and ethnic origins into a belief-based one, in effect making race into a religion. Many countries (not the U.S.) have a religion question in their census as well, and this isn't problematic where it is done, or in surveys asking questions about religion, although being clear on definitions can be important (e.g. in the case of a religious v. ancestral or ethnic v. self-identified definition of who is a Jew). I strongly suspect that the differences in how people respond to the question arising from a national or ethnic origin definition, and a definition based upon self-identification, are negligible at the statistical level. A century or so from now, when census records are made public, it will be possible to confirm this definitively by examining how the same individual's race was reported on half a dozen or more successive census forms. In non-census contexts, this shift in the definition has not produced any statistically meaningful differences in how people respond. Also, if anything, the new definition based on self-identification may be more useful to researchers who are trying to examine socially coherent communities, and it makes the race data slightly more comparable to data, for example, on religion and on sexual orientation (from non-census sources). | Your silence can be used against you: this is known as an adoptive admission. It is an exception to the hearsay rule, and is based on the premise that if a person hears and understands an accusation against them (even framed very indirectly), and "adopts" the truth of the accusation by directly acting in a certain way or by failing to dispute the accusation, this can be introduced as a form of admitting to the accusation. For instance, B might say to A "I laughed when you shot Smith in the foot" and A might say "That was pretty funny, right", that can be admitted and interpreted as a confession. The same goes for A saying nothing. What's crucial is that the accusation has to be made in the defendant's presence, they must hear and understand it, they must be able to deny the accusation and it would be natural to deny the accusation. There is a relationship between this and the Fifth Amendment, see Salinas v. Texas (and prior law), that "To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who “‘desires the protection of the privilege . . . must claim it’". During a non-custodial interview, defendant was asked asked if his shotgun “would match the shells recovered at the scene of the murder”, and he said nothing (and actually gave non-verbal indicators that the accusation was true). He did not invoke his right to silence, thus the court reasoned that "Because he failed to do so, the prosecution’s use of his noncustodial silence did not violate the Fifth Amendment". | It is legal, unless the laws of that state say otherwise. Governments are allowed to charge different tuitions to residents vs. non-residents. They can also require proof of residence (not just your say-so). Being physically present in a state for a couple of years is not proof of being a resident. That doesn't mean that the interrogation that you are getting is allowed by law, but it's at least consistent with the general pattern of out of state tuition laws in the US. If you have contradictory elements of "proof" (voter registration in another state), they can demand more evidence. It really depends on what the state laws are, so you could name the state. Also, the full financial disclosure may in fact not be related to tuition rates but to financial aid, where they can demand all sorts of things by way of proof. | From the German lawyer association ("Deutscher Anwaltverein") one can find the following (Google-translation): In the case of a purely preventive identity check, the officers are initially only allowed to determine the identity of the respondent. This means that you can ask for your name, date and place of birth, home address and nationality and have your ID shown - by the way, as a German citizen you don't have to always have your ID with you. "You don't have to answer any questions beyond that," says lawyer Robert Hotstegs from the German Lawyers' Association (DAV). Of course, police officers often try to gather more information with emphatically casual questions. "Well, where do we come from" or: "And where are we going now?" Are typical examples. The police are not allowed to insist on an answer. Anyone who, as a respondent, is voluntarily too willing to provide information can harm themselves and possibly even give rise to concrete suspicions. So they are allowed to ask such things, but you don't need to answer everything. How to handle such situations, again according to the link above: “I recommend answering the survey as briefly and politely as possible. This has a de-escalating effect and helps to end the unpleasant situation as quickly as possible, ”says Attorney Hotstegs. However, you should always answer the questions about yourself. Because if the police cannot determine the identity of a person or only with great effort, they may take further measures to determine the identity. This includes taking it to the police station and, under certain circumstances, a search. Otherwise, these measures are not permitted without a specific reason. | It is basically fraud, and there are two ways in which it could be illegal: it might be a crime, and you might get sued for doing it (you would not be fined or imprisoned, but you may have to compensate the hotel chain for their loss). Whether or not it is a crime depends on the jurisdiction. In Washington, there are very many laws against fraud such as RCW 9.38 (credit), RCW 9.45 (numerous things where a business defrauds others), RCW 9.60 (forgery) but none of them would apply to lying about a material fact to a business in order to get a discount. Texas likewise has a long section on criminal fraud. It is not clear from the wording whether a customer lying to a business (not involving forgery, vehicles, credit, or financial institutions) is covered. 32.42(b)(10) says A person commits an offense if in the course of business he intentionally, knowingly, recklessly, or with criminal negligence commits one or more of the following deceptive business practices... making a materially false or misleading statement of fact concerning the reason for, existence of, or amount of a price or price reduction The question of interpretation that this raises is whether a person who has said "I'm over 70" so that they can get a discount has made a statement "concerning the reason for a price reduction". The ordinary interpretation of "concerning the reason for" would be that it refers to explaining why or under what conditions a price reduction exists. For the moment, I am skeptical that this definition would include the case at hand, but that will require a search through case law and jury instructions. From the lawsuit angle, you would have knowingly made a false material statement in order to obtain a value, which is illegal, and they could sue you to recover the discount. | Hard to prove a negative, but the answer is no. Here's some support: https://martialarts.stackexchange.com/q/72 http://www.fightingarts.com/reading/article.php?id=460 explains possible origins of this myth: By Jonathan Maberry This is one of the oldest American martial arts legends, and there is absolutely no basis or reality in it. First off, there is no department or process within the U.S. government to regulate martial arts, which means there is no instrument in place to identify persons practicing fighting arts, and no governmental method by which practitioners can be evaluated. ... Actually there is not a country on earth where martial artists are required to register themselves as weapons, deadly or otherwise. This myth has its roots in two different aspects of mid-20th century history. In post-World War II Japan traditional martial arts were made illegal, and records were kept of those persons who were experienced practitioners of the arts. This was a bit of anti-Japanese backlash following the war and lasted only a few years. It has not been repeated, and it never spread beyond the borders of Japan. The other root is planted in the soil of the rich and often outrageous history of professional boxing. In the Joe Lewis era (the boxer, not the karate master), it was a common publicity stunt to have police on hand during a press conference to “register” the boxer as a deadly weapon. Understand, this was just a publicity stunt and carried no more legal weight than receiving the Key to the City actually means you can open any door with it and just walk in. In court cases involving violent confrontations, lawyers and judges may advise the jury to bear in mind a person’s martial arts, boxing, or military combat training when evaluating the facts of the case. For example, in the Matter of the Welfare of D.S.F., 416 N.W.2d 772 (Minn. App. 1988), the Minnesota Court of Appeals concluded that the defendant, who had "substantial experience in karate," was aware enough of the potential of his blows to deliberately break the plaintiff’s jaw. But that is a lot different from legally stating that the person in question is a registered or licensed “deadly weapon”. | Yes. This is legal. See, e.g. SPARF v.U.S. 156 U.S. 51 (1895); U.S. vs Moylan, 417 F 2d 1002, 1006 (4th Cir. 1969); U.S. v. Krzyske, 836 F.2d 1013 (6th Cir. 1988) ("the jury asked the judge about jury nullification. The judge responded, "There is no such thing as valid jury nullification." The jury convicted the defendant. On appeal, the majority and the dissent agreed that the trial judge's instruction was untrue, but the majority held that this false representation was not a reversible error."). Indeed, procedurally, the system is specifically designed to prevent courts from even considering such a question. See also, e.g. People v. Iannicelli, 2019 CO 80, § 2 (Colo. 2019) (holding no crime was committed) ("Defendants Mark Iannicelli and Eric Brandt stood in the plaza square adjacent to the Lindsey-Flanigan Courthouse in Denver and asked people entering the courthouse whether they were reporting for jury duty. If any of these people answered affirmatively, then Iannicelli and Brandt would hand them one or more brochures discussing the concept of jury nullification, which the brochures defined as the process by which a jury in a criminal case acquits the defendant regardless of whether he or she has broken the law in question. As a result of this conduct, the People charged Iannicelli and Brandt with multiple counts of jury tampering") This is deeply entwined with the U.S. law interpretation of the Fifth Amendment Double Jeopardy Clause's protections, which prohibit a retrial or appeal following a judgment of acquittal, which have been incorporated by the U.S. Supreme Court as applicable in state courts as well. | Yes and No. The Federal U.S. Government as well as each individual state and territory claim Soverign Immunity to a limited degree. In the case of Federal Government, they claim Soverign Immunity to a near limitless degree (more on this in a moment), while States and Territories claim "State Soverign Immunity" which grants them immunity with respect to all soverign powers granted under the U.S. Constitution. To clarify, each U.S. State is seperately soverign in all matters not explicitly allocated to the Federal Government by the U.S. Constitution and all constitutionally written laws. Where the Constitution does not in writing claim a power for the federal government nor reserver a power for the state government, the power is assumed to be state government. So a State can claim immunity for a police situation but not a law it makes regarding immigration or foriegn policy, since that is the exclusive wheelhouse of the Feds. Per the 11th amendment, states can only be sued in state court by citizens of the state, while non-state citizens wishing to sue a state must sue in the Federal Court (Which for the purposes of the trial may adopt the defendant State's laws and regulations for the purposes of questions of fact and law brought up in the suit). All U.S. States and the Federal Goverment additionally wave Soverign Immunity under specific conditions outlined in laws. In the case of the Federal Government, the laws governing when this immunity is waived are governed by the Federal Torts Claims Act (1946) and the Tucker Act (1887). The FTCA covers intentional torts by the Federal Government, while the Tucker Act typically covers matters related to contractual obligations or monitary interactions with the federal government. Things that may be sued for include but are not limited too: Intentional Torts committed by Government Agents in their Official Capacity (i.e. When the FBI violates your rights or maliciously investigates you). Contractual disputes where the Government is a party to the Contract, either in written or implied terms. Constitutional Claims (i.e. The Government may have violated the Constitution. These tend to be for non-monitary relief such as mandemuses, though the 5th Amendment's Taking Clause can be invoked of the government took property and does not justly compensate.). Individual Agencies of the Government when the monitary claim is not drawn from the U.S. Treasury (the agencies own allocated budget is used to pay). Refund for taxes paid In all cases, a Judge will determin if the Government, under the laws, can be sued. If in the example of a government employee being sued, the Justice Department will first make a determination if the employee was acting as an agent of the government when they committed the tortious act, and then will declare themselves Respondent Superior through the agency of employement. From there, the case becomes a suit against the Federal Government and FTCA immunity waiver is determined by a Judge. For example, lets say you (Mr. Rapt) sue Special Agent Jimmy Jones of an intentional tort that he committed in the course of his duty as an FBI agent. The DOJ will first declare that they are Respondent Superior in the case of Rapt v. Jones, thus turning the case to Rapt v. United States Government, Department of Justice, Federal Beura of Investigations, and Jones (Rapt v. United States, et. al.). From here, the Judge who gets the case then determins if the U.S. Government under FTCA can be sued by Rapt, based on Rapt's citizenship status (usually permanent legal residents are covered as citizens for this point, but I can say for certain in this particular law), ripeness (the suit must be filed within 2 years of the incident or first knowledge), and immunity waiver under FTCA. In the case of the State Government, they should have similar laws, but I'm not going to identify all 50 individual laws here. Additionally, the 11th Amendment permits U.S. Congress to waive a State's immunity to suit in certain cases (mostly comes up with the Due Process Clause in the 14th Amendment.). As a fun point, in all cases where a government appears as a defendant in a suit, it is automatically a Bench Trial, as the government usually include a waiver of their right as defendant to a jury trial. The thinking here is that, as a country that was founded by rebelling against the government, a jury of 12 of the government's citizens aren't going to give them any slack at trial, where as a judge (who they pay) is much more likely. TL;DR: Both questions are yes. The immunity is waived under federal law for certain cases, but it is a judge who will make the ruling if the specific case meets the aformentioned waived immunity. |
How can huge company mergers that kill all competition be legal? Disclaimer: I'm a programmer/electrical engineer and therefore a complete novice to law. My question is: how can mergers of direct competitors, each already having a dominant market oligopoly, be legal? The trend in the electronic industry the recent years has been that two huge, multi-national companies that are each other's direct competitors, with little or no other competition, have merged into one. Some notable examples: Infinion acquires International Rectifier. Both companies specialized in advanced MOSFET circuits with barely any other competitors existing in the whole world. They now have close to monopoly on these kind of circuits. You find these circuits in every modern car. Microchip acquires Atmel. Both companies were direct and fierce competitors in the market of cheap, small microcontrollers. They were the only two companies in the world that profiled themselves as having beginner-friendly, easy to use microcontrollers and so they have been competing over the very same kind of customers for the past 30 years or so. There is barely any competition left at all on that market now. NXP acquires Freescale. The companies had many overlaps and were competitors in many areas, particularly in microcontrollers and automotive electronics. These two companies branched out from Phillips and Motorola respectively, roughly at the same time, some 15 years ago. Since then they had the same owners. NXP now got a different owner Qualcomm, at the same time as the merger. Qualcomm being another of these huge companies, but with a focus on telecom electronics, where they in turn have close to monopoly. So essentially this is 3 companies merging into 1. There are many more examples. ON Semi acquires Fairchild, Analog Devices acquires Linear Technology and so on. All in the past 1-2 years. It is the same story over and over, two huge multi-national companies that are direct competitors, with little or no other competition, merge into one. Imagine Microsoft and Google merging and you get the idea. The nature of their products - advanced electronic components - is such that barely anyone can start up a competing company, as they would need to do massive investments in R&D, head-hunt all staff from the existing companies and possibly also make massive investments in production lines. Because of this steep threshold to enter the market, there has traditionally only been around 20 companies like this in the world, making 99% of the world's advanced electronic components. I take it that these mergers must have been approved by authorities in USA and Europe etc. Are there no laws regulating this? If there are, how do these companies manage to repeatedly dodge such laws world-wide? | There are no laws directly regulating merger of two companies. Instead, there are laws against "monopolizing" (and similar expressions). In the US, the Sherman Act, the Clayton Act and the FTC Act providing the legal underpinning for the Department of Justice to prosecute a merger, or for a judge to prohibit a merger. The typical logical flow is that it is illegal to unfairly reduce competition, which might mean lowering prices when you have a substantial share of the market, privately agreeing on technical innovations with a competitor, or simply gaining a substantial share of the market via a merger. Section 7 of the Clayton Act (also Sect 1 and 2 of the Sherman Act, Sect. 5 of the FTC Act) forbid a merger or acquisition when the effect would be "substantially to lessen competition, or to tend to create a monopoly". The US government has issued guidelines that gives ballpark suggestions about that they would be looking for in deciding is a merger is forbidden. The Hart–Scott–Rodino Antitrust Improvements Act provides the legal framework for federal review where the government approves vs. blocks an acquisition action (you have to file paperwork so they know that you intend a potential violation of anti-trust law). There are thresholds involving how big the cmopanies are and whethr4e they affect US commerce. This blurb outlines the review process. | You don't say what jurisdiction's patent laws you're interested in, and priority dates can differ in different schemes. I'm answering as to U.S. law only. In the United States, under the current hybrid "first-inventor-to-file" system, the priority date--the date that determines who "wins" if there are multiple claims to a specific invention--is, with some exceptions that I won't go into, the date of your first application. In other words, the date that the PTO got it in the mail. Once your application is submitted, it is--again, with some limitations I won't get into--prior art for the purposes of any later-submitted application. They can't get another application later, grant it first, and then deny your application based on the later-submitted application. Your application date would still win out. Could someone in the USPTO slip your application out of the stack, fudge the dates, and convince some other company to submit a similar application to get priority over you? Not as a practical matter, no. The USPTO isn't one guy in a room; it's a large organization, and the person who opens the mail, types in your application details, and sends you a receipt, isn't the same guy who knows whether your invention is any good or not. And, frankly, very few patentable inventions are going to be worth someone risking their job and/or jail time over--especially when there would be significant evidence of the misconduct--for example, your patent agent's files. So what are the chances that the examiner on your patent: 1) Is a nefarious character who has lived a life of public service long enough and wants to go rogue; 2) Has a friend in the mailroom who is also an expert in the field of your invention; and 3) Has a conduct in industry who is willing to break the law for the rights to your invention? Slim to none. And if you have an invention that is really so revolutionary that it's going to be worth so many people risking so much to steal it, odds are there will be other evidence that you were the inventor. | The companies agree to resolve the dispute with a neutral arbitrator. This is similar to a court action, but instead of a judge or panel of judges, there is an arbitrator or panel of arbitrators. The two parties to the dispute must agree to this in advance. For more information, you can consult the rather thorough Wikipedia article on the subject: https://en.wikipedia.org/wiki/Arbitration | First of all, this assumes that the debt consolidation firm would be willing to buy, and the CC company willing to sell. With a trial already scheduled, this might well not be the case. Secondly, when (if) the debt consolidation firm buys the debt, they buy the rights of the seller. In many states the trial could go forward, with the debt consolidation firm substituted as plaintiff. It is not automatic that a sale of the debt would postpone the legal case. Certainly if this happened once, it seems very unlikely that a second debt consolidation firm would buy the debt from the first. And as the comments by Moo and ohwilleke suggest, such a scheme would be fraudulent and criminal, if discovered. It might also constitute contempt of court for intentionally abusing the process of the court. Not a good or safe idea. | The Right to Repair generally talks about hardware, not firmware or software, and only to the point of restoring "original" functionality. For example, RTR would make it prohibited to have Apple require that they fix your phone battery for hundreds of dollars and make it impossible for you, or a third-party shop, to do the repair instead. In Sonos case, RTR would imply that if your speaker blew a fuse (or capacitor, etc), you should have the right to fix that yourself, and they should provide you with reasonable instructions and hardware to do so. That said, if you look at the Sonos OSS references, at least a few of the licenses suggest that you can't release derivatives under more restrictive languages. Unfortunately, I'm not aware of any case law that establishes this would work, and it would be really expensive to try and find out. There's also the problem of Intellectual Property and Copyright that they could try to argue as reasons why they can't release the proprietary bits that make their hardware run. Any other options would be, unfortunately, illegal, in part because of the DMCA. Edit: Looking further into this, I found that there is H.R.4006 - Fair Repair Act, which, if passed, would require manufacturers of some hardware to offer diagnostic tools and public copies of firmware. In addition, there are also actions being taken by iFixit at the Copyright Office to allow an exception to DMCA violations for the purposes of patching firmware. Also, the President of the United States issued an Executive Order that, among other things, instructs the FTC to set rules against anticompetitive repair policies. Much of this has moved forward in just the last year, so it's relatively new to me, but it sounds like an even stronger indicator that Sonos is probably not going to have that defense much longer, unless they totally abandon their old hardware, in which case, it may become legal to hack your own firmware. | Anyone seriously planning on doing this or anything like it would be well advised to consult a good trademark lawyer with the specifics. Specifics will matter in such a case. That said: Under US trademark law, the key question is whether a reasonable person would be confused into assuming that there is some connection, and that the new firm could be relied on based on the reputation of the old one. if so, this is a trademark infringement unless permission is obtained from the trademark holder (not likely to be granted). Since "orbitz" is a coined term its protection is stronger, there is no natural object or concept this can refer to. "AppleMoving" is less likely to be confused with "Apple Computers" because apples are real things and need not refer to computers. The likelihood of confusion depends on the specific facts of an individual case. Note also that trademark protection is a matter of private civil lawsuits. If orbitz didn't choose to sue for whatever reason, nothing would have stopped OrbitzMoving. | First of all, you own the mobile phone, you do not own the software on it - you have a licence to that software that almost certainly includes terms allowing Samsung to change the software and/or revoke your license. Second, changing the software does not destroy the phone - the hardware is completely intact. You can present that hardware and, in exchange, receive a brand new working phone which has the added advantage that it won't spontaneously explode. Alternatively, if you are an idiot, you can install a non-Samsung OS and cause your bomb, sorry, phone, to work again. Third, Samsung is probably not liable for any consequences that flow from an inability to make phone calls in any event - their contract will almost certainly exclude it and a case in negligence would probably fail for lack of both a duty of care and/or lack of foreseeability. Alternatively, Samsung is aware of a real risk to the users of their phone and have gone to great lengths to get them back. Having reached a 93% return rate they have identified a way to make the remaining 7% completely harmless. It is arguable that if they can do this and don't, then they are being negligent. | What are exactly the legal consequences of "All rights reserved"? Almost none. You have to explicitly grant copyright rights. You don't even need the Copyright notice for them to apply. My "almost" is because the notice makes it harder for somebody to argue "they didn't realize". Do I still need an additional SW License Agreement or is the Copyright notice above + a Disclaimer of liability sufficient? If this is free software (I know you said it isn't), do yourself (and everyone else) a favour by picking a license you like. Preferably either GPL or MIT (depending on your taste). There are far too many free licenses already. Please don't add another. (It also makes it much easier for any user of your software: "Oh yeah, GPL v2. We understand that. We can use it." as opposed to "What are the implications of using this one??" As this is not free software, I think you need a paid-for lawyer (who understands IPR in your juridiction.) Edit: In principle, I believe you don't need anything. The code is copyright, so the customer can't do anything with it (without explicit permissions that you haven't granted). However if the customer doesn't realize that or thinks you won't mind, you then have to go to court to enforce your rights (and probably end up with a disgruntled customer). A short, clear, license will make it clear to the customer what they are allowed to do, and save all that aggravation. |
Can online gambling sites bias their games? There's biases in gambling, such as the 0 on a roulette table, but that is arguably obvious to the player. Is it legal for online casinos to knowingly or unknowingly bias their games at a software level (random number generator etc) in their favour? Could something like this be covered in the small print? A problem with RNGs is they all have a bias, we have no perfect system of generating random numbers, but if a bias is detected by the casino, would they legally be required to adjust or change the system they're using? Specifically I'm interested in the UK and anywhere notable in the US, or if there's somewhere in particular gambling websites set themselves up to avoid these regulations. It would also be interesting to see if the more popular gambling websites worldwide have any common locations. This seems to cover randomness in the UK, does it apply to card games? (under section Randomness) http://www.gov.im/lib/docs/gambling/Regulations/onlinegamblingsystemverification.pdf | In at least one jurisdiction for at least one game type, the answer is "Yes". Modern slot machines and internet slot games are software, and yes, payout ratios are set as a parameter in the software, as an explicit bias in the software. There are statutory minimum payouts in some jurisdictions. The exact parameterized payout ratio for any specific game does not need to be made clear to a player. The jurisdiction may test, approve, and gather and publish aggregate statistics for all casino games. As I am most familiar with New Jersey casinos: as a recent innovation in the law, New Jersey casinos can operate internet games. They are regulated by the Casino Control Commission of New Jersey. The Commission approves all games, and gathers and publishes statistics about the aggregate payout ratio which is shared by third party sites and becomes cited in advertisements (so there is a market based component to keep casinos from setting the parameters too far out of the pack of their competitors: NJ's statutory minimum payout ratio is 83% but you can see at the second link that all NJ casinos hover around 90-91% for the 2014 year of data). http://www.nj.gov/oag/ge/gamingsites.html http://www.americancasinoguide.com/slot-machine-payback-statistics.html#New-Jersey If there is a new game or new software, before it is placed in service, it must be tested by the Commission; and the code employed by the casino must be a "true copy" of the code as tested. I don't know for certain if "pseudorandom" artifacts are a sufficient reason for failure in game testing for the Commission, but maybe you can find more to your specific case here: http://www.nj.gov/oag/ge/tsb_mission.html | First of all, in a GDPR contest, the process described is not strong anonymization. It may be hard for an outsider to go from the stored record to any PII, it is much easier for an outsider to "single out" an individual. This means that given a known individual, one can determine whether that person is among those listed in the records, or can determine this to a significant degree of probability. For this only the algorithm and the rotating salts are needed, one need not break the hash. Note also that the GDPR specifies that if a person can be singled out with the assistance of the site operator the data is not considered anonymized. Thus this data needs a lawful basis under the GDPR, and the various other GDPR requirement all apply. However, even if the data were totally anonymized, and say just added to a count of users with this or that User Agent, the process of reading local data (including but not limited to cookies) itself requires informed consent, and so a cookie banner or other interaction with similar info under the e-Privacy directive (EPD). The EPD, being a directive and not a regulation, must be implemented by national laws, and the exact provisions in those laws may differ somewhat from country to country. But I believe that all of them require consent before any local data is read. | No. The site would not be liable for irrational and idiotic behavior, because irrationality and idiocy remain quite legal. | Are online stores supposed to state the true “order cost”/value of an order on the package/envelope for the customs? Yes Is it common practice to slash 10x off of the price for the customs to not add various fees? Common? Probably no. Uncommon? Also, probably no. Isn't that illegal? Yes Of course, they can claim it was a mistake if ever found out, but if they do it consistently, that seems difficult... Not to mention there must be electronic proof of how much each order actually cost the customer? Yes Look, robbing banks is illegal but people still rob banks. Similarly, ripping off HM Revenue & Customs is illegal but people still do that too. In fact, far more people do that than rob banks. | Let’s say I go to a cash machine, ask for £100, and the machine gives me £10,000. I use my banking app and see that £100 left my account, not £10,000. At this point I haven’t done anything illegal. If I asked for another £100 and got £10,000 again, that might be illegal. But the extra £9,900 are not mine. They are the bank’s money. If I try to keep it, that is simply theft. | Extrajudicial implies there is some weight of law behind the casino behaviors you describe. I don't think there is. For example, refusing to cash out chips could just be a management intimidation tactic to try to coerce the customer into agreeing to be "questioned." Which the customer would be under no legal obligation to do. Card counting can't be proven if the counter is not using a device of any kind. The casino can refuse to serve the customer and expel the customer but they can't unilaterally keep the customer's money by not cashing the customer's chips without a judgment. I am not an attorney. This answer is not legal advice. | are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like The safeguard you outline would be overridden as soon as the author enters any contract that requires assignment of copyright. (I would not delve in the differences between licensing and copyright assignment because that hypothetical author is dealing with a contract of adhesion which readily requires assignment; the author has no option to change the ToS to allow for licensing only) Under contract law, one of the essential prerequisites is that the conditions of a contract be entered knowingly and willfully. By deliberately clicking on a ToS page to move forward with the uploading a copyrighted work, the author is signaling his awareness and acceptance of the ToS. The fact that the author chose not to read the ToS is irrelevant and very unlikely to strike whatever entitlements the website owner formulated in the accepted ToS. For the same reason, the author's safeguard disclaimer does not bind the website owner: It cannot be said that the website owner was aware of that disclaimer at the time of the formation of contract between the author and the website owner. That is, the website owner did not knowingly and willfully accepted the author's safeguard. The website owner is not even expected to know about any safeguards which one of its potential user intends to establish. The length of a ToS document is also irrelevant because the website owner has the valid argument that "the user-author could have skimmed through the ToS or do a search (via Control-Find) of keywords such as 'copyright' or 'property', whence any allegation of 'inadvertent' assignment of copyright is untenable". Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway? Yes. That consists of not uploading one's works in such platforms. In contract law that would be expressed as "declining an exchange of considerations". There are many other alternatives for an author to promote his work without being required to assign copyright. | That's probably not a violation of that rule...but that's not your biggest problem. The most reasonable interpretation of that line in the terms is that you can't use a bot or do anything that looks kind of like using a bot. So if you and all your friends used a script to enter your picks for you, that wouldn't be allowed. Manually entering picks based on some predetermined methodology is hardly "robotic, repetitive, automatic, programmed or similar." Your much larger problem is mathematical, not legal: you'll need 42,467,327 friends (plus yourself) to guarantee a perfect pick. It seems like you need to correctly rank 4 groups of 4 in order, plus correctly guess the result of an additional 7 two-team games, so that's ((4 nPr 4) ^ 4) * 2^7 = 42467328 entries required to cover all possible rankings. Last year, there were 5 million participants (and only one perfect pick among them), so if you get that many people to enter, I'd bet Riot would be more than happy to give you a free computer for advertising their tournament to so many people. |
Can I force my wife to have a DNA test on a child? Long story cut short my wife had an affair while we were still living together and I found out she was pregnant shortly before finding out about the affair. She resists talking to me about the unborn child now we are separated as she doesn't want her new partner to know we were sexually active during the affair. Can I force a DNA test to be carried out as we are still married and weren't separated at the time the child was conceived. | Both parents are legally responsible for the financial costs of raising a child. If you don’t have day-to-day care of the child, you may have to pay child maintenance to your partner or she may apply for maintenance and name you as the parent who has to pay maintenance. You are allowed to deny that you are the father of the child and if she wishes to pursue it further, you both may be asked to take a DNA test in order to prove or disprove that you are the father. You cannot force her to do this. It must be voluntary on both sides. If you're just looking to force her to have a DNA test based on the morality of raising a child then whilst I admire your attitude, unfortunately this is not something you can force her to do. For more information on this matter, head over to this article on the citizens advice website. I hope this helps | Yes, it is illegal in North Carolina, which defines your sex as what's on your birth certificate. At any point in your transition, even when it's long complete, you'll still have to use the restroom for the gender on your birth certificate (hypothetically assuming the law is still in place). See e.g. this CNN coverage and this followup. Will you actually be arrested? Probably only if there's a complaint. The police haven't yet figured out how they're supposed to enforce this law. | I did a lot of digging through case law and statutes, but I don't see a definition for "biological sex" anywhere in federal law, though after looking through those cases, it seems pretty clear that courts think of "biological sex" as a definition of "sex," and that they take it to mean the sex listed on your birth certificate. Even if we could find a straightforward statutory definition, it probably wouldn't do much to inform the interpretation of this memorandum, as it would only apply to the specific section of law in which the definition was included. | In the USA, at least, it has never, to the best of my information, been legally mandated to add a name on marriage, or even for husband and wife have the same last name. It has long been customary in the US for a woman on marriage, to adopt her husband's surname. This is no not nearly as common as it once was -- it was once almost invariable, but some women did not do so, or kept a pre-marrige name for professional purposes, even many generations ago. When a woman married, in some social sub-groups it was common to simply drop her former surname and replace it with her new husband's surname. In others, the new surname was added to her existing name, potentially leading to the kind of long series of names mentions in the question. In the 1990s Judith Martin, writing as "Miss Manners", wrote that the first of these was the more "traditional" but both were not uncommon. When I was married, the clerk asked my wife and I what name each of us would be known by after the marriage, and that constituted a legal change of name. But we were free to make any choice we wanted. I think this has been the usual procedure in the US for a long time now. On divorce, a woman in the US (and the UK and Canada) traditionally kept her former husband's last name, although some returned to a pre-marriage surname. On remarriage, some added a new husband's surname, others replaced the former husband's name. Some said that keeping the former husband's name was a statement that the woman had been without fault in the divorce, or want to remain associated in some way with her former husband's family. There were, of course, also women who remarried after a former husband's death, rather than a divorce. In any case, I do not think any of this was legally required, but custom can sometimes be as strong as law. Other cultures had and have different customs on marriage and divorce. But in most places these are not a matter of law. I do not know of any country that legally mandates a change or modification of name on marriage, but some may. | No The argument is vacuous in any event because AFAIK all jurisdictions that enforce sex discrimination laws have parental leave (paid or unpaid), not maternity leave so a man is just as likely to need it as a woman. This, of course, raises the issue of discrimination by marital status (on the basis that unmarried people are arguably less likely to have children) or age (on the basis that people outside 'childbearing' age are less likely to have children; fortunately these types of discrimination are also illegal. Notwithstanding, the loopholess you think there are in the laws are simply not there. For example s14 "Discrimination in employment or in superannuation" of australia Sex Discrimination Act 1984 starts with: (1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: Later in s30 "Certain discrimination on ground of sex not unlawful" it says: (2) (a) the duties of the position can be performed only by a person having particular physical attributes (other than attributes of strength or stamina) that are not possessed by persons of a different sex from the relevant sex; If the job requires excessive strength or stamina, then you test your recruits for the level of strength or stamina the job requires. | There is a report about a male-to-female transgender woman here: http://www.abc.net.au/radionational/programs/lawreport/2017-06-27/8651398#transcript She managed to do the following: 1. While legally being a male, she got a preliminary passport as a woman so she could travel to Thailand, have an operation, and not run into trouble returning with a male passport and a female body. 2. While legally still being male, but with a female body, she married a woman in Australia. That was fine because legally she was male. 3. She has received a passport as a female. 4. She was refused a change of her birth certificate as long as she is married. So the current state is: She is (in fact, biologically) a woman. She is married to a woman in Australia. That marriage is perfectly legal, however, it is officially a marriage between a man and a woman. She has a woman's passport. The Australian government cannot and doesn't want to do anything to make her marriage illegal. BUT she cannot change her birth certificate without getting divorced first, and if she got divorced and changed her birth certificate, she couldn't remarry the same woman, or any other woman. | It is probably illegal in all of the jurisdictions in the US where a fetus is legally declared to be a person and where the murder statutes are written to not explicitly exclude abortion: that is, in no jurisdictions. No law existing or proposed for Georgia specifically addresses "travel for the purpose of getting an abortion". The underlying theory behind the claim (advocated by some Georgia attorneys) is that a person may be open to a conspiracy charge for taking a woman to another state to get an abortion, which would be a crime if committed in Georgia. If a conspiracy exists in Georgia to do something illegal (in Georgia), that is a violation of OCGA 16-4-8 ("when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy"). The substantially same law exists in Washington, and most if not all other states. The theory is apparently that "conspire to commit a crime" means something like "conspire to perform an act which would be a crime if performed in in this jurisdiction", e.g. "purchase marijuana, or take a job at certain payday loan companies". No state has successfully claimed extraterritorial jurisdiction, where a Georgia resident can be prosecuted in Georgia for a legal act carried out in another state, so this theory is a bit of a stretch. | Yes ... ... apart from the impracticality of it. Basically, the bureaucratic process of marriage and divorce doesn't fit within a 24-hour cycle. For example, in australia it is a requirement to notify the state one month before you intend to marry and divorce is a legal process that takes as long as it takes - typically years. But, assuming those obstacles did not exist, your scheme would not fall foul of the law. In general, you can remarry a person you previously divorced. kentucky [apparently]1 says enough is enough after the third time. Unless adultery is illegal (as it is in much of the Muslim world) there is no law against polyamory so long as no one person in the relationship is married to more than one other person. Your headline of "Concurrent Polygamy" is wrong - what you describe is "Consecutive Monogamy". |
Does section 2870 of the California Labor Code apply if my employer has headquarters in California but I do not work there? I do not live in California, but my employer does business, has headquarters, and is incorporated in California. Which state's laws apply to the employment agreement? In particular, does Section 2870 of the California Labor Code apply? 2870. (a) Any provision in an employment agreement which provides that an employee shall assign, or offer to assign, any of his or her rights in an invention to his or her employer shall not apply to an invention that the employee developed entirely on his or her own time without using the employer’s equipment, supplies, facilities, or trade secret information except for those inventions that either: (1) Relate at the time of conception or reduction to practice of the invention to the employer’s business, or actual or demonstrably anticipated research or development of the employer; or (2) Result from any work performed by the employee for the employer. (b) To the extent a provision in an employment agreement purports to require an employee to assign an invention otherwise excluded from being required to be assigned under subdivision (a), the provision is against the public policy of this state and is unenforceable. | tldr It depends on: whether the employment agreement specifies which state's law governs contract disputes; and how your state of residence and work treats governing-law clauses. Background To know whether § 2870(a) applies in this instance, a good place to start would be the employment agreement itself—contracts often contain a section on "Governing Law." This is an example of a choice-of-law problem, which is just preliminary procedural hurdle for a court to clear. Clearing the hurdle is usually easier for the court when the parties agree in advance about which state's laws will govern contract disputes. So, if the agreement says that California law governs, then one would typically look to statutes like § 2870(a) to interpret the agreement's provisions. But that's not always the definitive answer. Some states have laws designed to protect their residents by allowing them to void governing-law clauses that seek to have contract disputes adjudicated in a state where the employee doesn't live or work. Without knowing where you live, and in the interest of generality, let's use California residents as an example. Section 925(a) of California's labor code allows California resident workers to void governing-law clauses in employment agreements that deprive them of the protection of California's laws. But § 925(b) implies that the governing-law clause still controls unless that California resident worker affirmatively chooses to void the clause. Non-California employees would look to see whether their states have protective jurisdictional statutes like this. united-stateschoice-of-law | Ideas aren't property Your employer does not own your ideas. However, neither do you. Ideas are not something that is protected by intellectual property law. To be IP, you need more than an idea. What is IP? The most common types are: Patents - protect inventions and new processes Trade marks - protect logos, words and other branding Copyright - protects art, writing, music, film, and computer programs Registered designs - protects the visual design of a product Circuit layout rights - protect layout designs or plans of integrated circuits used in computer-generated designs Plant breeders rights - protect the commercial rights of new plant varieties. The normal operation of IP law is that if a person is engaged under a contract of service (e.g. an employment contract) then their employer owns all the IP they make which includes progress towards something that might be IP (e.g. all the work that leads up to a patentable invention). However, if they are engaged under a contract for service (e.g. an independent contractor), then the worker owns the IP. The work the employer owns is generally limited to work in the course of the employment. So if you are a software developer they will generally own all code you write that is useful for their business but won't own the romantic novel you write in your spare time. In either case, the specific contract can override the default assumption. What can you do? You can certainly use the idea for the app but you can't use anything that is subject to your employer's IP. That means you can't use any code or copy the user interface - it all has to be redeveloped from scratch. You also can’t develop something that would be of use to their business while you are still an employee. | Quitting before the start date: is the non compete enforceable? The non-compete is unenforceable unless the employer has provided you with material information that you can use to the detriment of the employer. Even in that case, the non-compete as outlined in your description seemingly exceeds the legitimate interests of the employer (see art. 2089 of the Civil Code of Québec). This means that the non-compete clause would be curtailed in court because the employer cannot prove that his business (or market share) encompasses the area depicted in the clause. The reason of being of non-compete clauses is to protect the employer from a potential misuse of information the employee obtained pursuant to his employment, such as trade secrets and information about clients. The fact that you are a fresh graduate suggests that you are dealing with just some typical intermediary who really has no "trade secrets" and who is not providing you with key information, let alone for a job that is scheduled to start five months later. Non-compete clauses that are overly broad contravene public policy in that they would singlehandedly exclude civilians from the labor market and disproportionately impair free trade. | See the answer to this question. It is remotely possible that it will show up, but the new S.C. law also says that an employer cannot use that information. On the other hand, that law is not yet effective (it becomes effective Dec. 27 2018), so for the rest of the year, the information could be used, if an employer obtains is. There is a law-enforcement exception that arrests can always be used against you if you apply for a law-enforcement related job. Under the current law (has been in effect for a while), the record is "under seal", so revealing the record in the course of a background check would be a violation of the relevant court order. The law specifies a punishment for illegal disclosure: A person who intentionally violates this subsection is guilty of a misdemeanor, and, upon conviction, must be fined not more than one hundred dollars or imprisoned not more than thirty days, or both. however, accidental disclosure is not a crime. You might think that you could at least sue them for accidental disclosure, but the law also says Unless there is an act of gross negligence or intentional misconduct, nothing in this section gives rise to a claim for damages against the State, a state employee, a political subdivision of the State, an employee of a political subdivision of the State, a public officer, or other persons. If the government person who releases the information intentionally does so, you can sue. Perhaps an accidental release could be found to be grossly negligent: that would depend on the circumstances. | Can he/lawyer try to use the payment to me as leverage, for example, offer to give me that payment only if I agree to sign a non-compete or other document? The employer ultimately ought to comply with the written agreements between you two. The employer is not allowed to belatedly impose conditions that alter (to your detriment) the contract(s), let alone when you are no longer his employee. The clause "You will be paid on X and Y when/if they close" does not reflect whatsoever that payment is contingent on your acceptance of a non-compete agreement. Your description does not reflect any legal merits that would justify your employer to further withhold the compensation to which you are entitled pursuant to the deal/sale that got closed. The employer and his lawyer are just being vexatious. | Some kinds of companies (e.g. freight shipping companies and banks) often do have those policies. The real issue is not whether those policies are permitted, but what the consequences are for breaking them. The fact that a company forbids its employees from exercising a legal right doesn't mean that the employee ceases to have that legal right. It simply means that if the employee exercises that legal right, then the employee has breached the contract and may suffer the consequences for breaching that contract. Violations of those policies are grounds for termination from employment, and this would probably not be void as a matter of public policy. For an employee at will this is really pretty meaningless, although it could conceivably affect unemployment benefit eligibility. But, for a unionized or civil service employee who can only be fired for cause, this is a big deal. But, in theory, a company policy does not impact the tort liability or the criminal liability of the individual engaging in legally privileged self-defense to anyone. This is because two people can't contractually change their legal duties to third parties with whom they are not in privity (i.e. with whom they do not have a contractual relationship). And two people also can't contractually change the terms of a country's penal laws. The policy may be a defense of the company from vicarious liability for the employee's use of force in violation of the policy that gives rise to civil liability for the employee because the grounds for authorizing self-defense were not present. If the employee using force did so wrongfully and was sued for negligence rather than battery, the existence of the company policy might also go to the issue of whether the employee was acting negligently since a reasonable person in the employee's shoes might have been less likely to wrongfully use force in purported self-defense if there was such a policy than if there was not such a policy (and instead there might arguably have been a legal fiduciary duty as an agent to protect the property and workers of the principal in the absence of the policy). | In general, "a signed piece of paper" is not "a contract". It may be a record of a contract, but the contract itself is the meeting of minds where an agreement is reached and doesn't depend on the existence of the piece of paper. (Depending on the jurisdiction, some sorts of contract are required to be in writing, but this doesn't usually apply to employment contracts; it's usually contracts involving land.) What is far more worrying to me is that you don't know how much they are going to pay you. That suggests there hasn't been a meeting of minds, and there is no contract. (It might be that "the going rate" is good enough to form a contract - to determine that would require advice from a local lawyer.) I suggest you don't write up a formal agreement, but nag your boss to decide how much they are actually going to pay you. | In germany, this is called Friedenspflicht. Both employers and employees (and their unions) are required to refrain from strikes and lockouts in disputes on issues which are covered by a currently valid collective bargaining agreement. The agreement may also stipulate that there will be no labor actions on issues which are not covered, as long as the agreement is in force, but that is not necessary. Example: There is a collective bargaining agreement on wages, which is still running. Strikes for higher wages are prohibited. Strikes to get better staffing for the night shift would be allowed, if the agreement doesn't say how many employees should be on duty even during slack hours. |
Deducing and using an email address under GDPR I was recently contacted on a work email address by a recruiter, working from a private recruitment agency. I have had no prior contact with this recruiter or agency before this. The work email address I was contacted on is not listed in the public domain anywhere that I know of (not on the company site, not on LinkedIn etc). When I questioned the recruiter about where he found my email, they stated that they had: "[...] had contact with people at [CompanyX] before and know the email syntax". I can only assume this means they knew I had started work at the company (this information is available on LinkedIn in the public domain) and knew the email syntax, and so used this knowledge to guess my email address and contact me. Given new GDPR legislation in the UK and Europe, specifically around the need for a company to gain explicit consent to contact someone before doing so, is this approach for contacting people legal under GDPR? | First take a look at Article 13(1) of Directive 2002/58/EC Article 13 Unsolicited communications The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may only be allowed in respect of subscribers who have given their prior consent. Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details when they are collected and on the occasion of each message in case the customer has not initially refused such use. Note that this is a Directive, so it is not directly binding, but each EU member state has created it's own laws containing this. I also quoted paragraph 2 for completeness, but based on your description, it does not apply. Article 95 GDPR explicitly specifies it does not change any obligations from Directive 2002/58/EC. So it looks very clear to me the situation you describe is not legal. Article 14 GDPR allows you to request all information regarding this, which included information how they have exactly obtained your name and email address. | From the GDPR's definitions: ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; This blurred image would be "information relating to an identified ... natural person (‘data subject’)." It does not matter whether the person can be identified using the information in question. Therefore, the answer to your question Under GDPR, does blurhash of a profile picture count as personal data is yes. | Does GDPR apply if my web app stores personal data on the user's phone only? No. If you are not processing Personally Identifiable Information (PII) then the GDPR does not apply to you. This is what a web browser does when it asks to remember your username and password for this web site. You are providing a tool, the user is using that tool to process their own data. I do offer to back up the user's personal data At this point you are processing the users PII, and the GDPR does apply to you. Even though you do not have enough information to identify an individual, as it can be used with other information to identify an individual it is PII. From the ICO: Can we identify an individual indirectly from the information we have (together with other available information)? Even if you may need additional information to be able to identify someone, they may still be identifiable. That additional information may be information you already hold, or it may be information that you need to obtain from another source. When considering whether individuals can be identified, you may have to assess the means that could be used by an interested and sufficiently determined person. | [I'm not so well-versed on US and Russian law, thus I will limit my answer to EU law.] Your specific use of a user identifier, as I understood from your question, can be classified as personal data, so in your case, the GDPR seems to apply. This means that you need to have a) legitimate purposes to process that personal data (e.g. crash reporting) and b) a legal justification for each purpose of processing: it could be based on consent or another legitimate purpose (inc. your own legitimate interests). Consent might not be the best option for you, but it's up to you to decide. In any case, you need to assess the risks to the data subjects (your users) before you decide. How likely is it that you will get breached, and what potential harm will that cause to your users? These are some guidelines; my recommendation is that you read the law and the guidelines by the Article 29 Working Group and European Data Protection Board, or hire some good experts on this. There is no easy answer, or one size fits all solution. The GDPR isn't so hard to understand or implement, but it does require some change in mindset. With the new law, processing personal data carries a higher risk of penalties, so you should do it only when it's absolutely necessary, and with respect to the rights of your users. | GDPR Article 4 paragraph 1 says: ‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; Recital 26 says Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. ... The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. Recital 30 says: Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them. An IP address hashed through a cryptographically secure one-way hash cannot reasonably be used to establish the original IP address, nor to geolocate, nor to directly identify the data subject. However if such addresses are stored in a database with a link to the subject's individual record, or to other data which identify the data subject, then they would clearly be personal information. The ICO's page on "What is personal data" says: ‘Online identifiers’ includes IP addresses and cookie identifiers which may be personal data. The page from GDPR.EU on "Personal Data" says: Any information that can lead to either the direct or indirect identification of an individual will likely be considered personal data under the GDPR. ... Any data that relate to an identifiable individual is personal data. The page on "Personal Data" from gdpr-info.eu says: Personal data are any information which are related to an identified or identifiable natural person. The data subjects are identifiable if they can be directly or indirectly identified, especially by reference to an identifier such as a name, an identification number, location data, an online identifier or one of several special characteristics, which expresses the physical, physiological, genetic, mental, commercial, cultural or social identity of these natural persons. In practice, these also include all data which are or can be assigned to a person in any kind of way. For example, the telephone, credit card or personnel number of a person, account data, number plate, appearance, customer number or address are all personal data. Since the definition includes “any information,” one must assume that the term “personal data” should be as broadly interpreted as possible. This is also suggested in case law of the European Court of Justice ... See also "Can a dynamic IP address constitute personal data?" If a hashed IP address is stored so that it can be related to a specific individual, it is personal data. as such, it would be subject to the GDPR. To store it one would need to identify a lawful basis under GDPR Article 6 This could be the Data subject's consent, or the Controller's legitimate interest. In either case the information should be included in the list of personal information collected (often in a privacy policy document), disclosed to the subject on request, adn deleted on request if possible. If that is done, such a use of a hashed IP, although personal information, would seem to be compliant. If a hashed IP is stored in such a way that it cannot be related to any particular user, then it would not constitute personal information, and no compliance issue would seem to exist. Limiting the retention time of a hashed IP is a good practice which would reduce any possible impact it might have. | a few quick notes that come to mind. As the commenters point out: DSGVO is indeed the German equivalent name to the GDPR (English term) "Imprint" isn't a privacy related topic that much, as such it's not really changed by the upcoming GDPR The GDPR changes many things, but the requirement for up front information isn't one of them - so it would've already been a rule to follow Sometimes the question who is responsible for privacy information might not be that easy to decide when you're on platforms. I take this situation as being pretty clear though. You are basically given a blank slate, you can do with that page whatever you want, and the visitor has no clue whatsoever that it might be hosted by Github. In addition to this, Github would be classified as a data processor (providing the tool) and you as the data controller who is in charge of practically everything except for the provision of the page. I hope this helps. Btw. it's not that hard anymore to write a privacy policy these days. | The GDPR does not outlaw such processing of personal data. It merely regulates how and for what purposes you can process personal data. In general, you can conduct any processing activity as long as it has a clear purpose and a legal basis. Here, the purpose would likely be something like “conducting business with my clients” and the legal basis would be a “legitimate interest”. A legitimate interest always requires a balancing test that weighs your interests against the interests and rights of the affected persons. For example, can the affected persons reasonably expect such processing activities? In a professional setting, it can probably expected that business partners keep notes about contact persons so your intended processing could be fine. The GDPR does impose some general constraints. There are general principles like data minimization and storage limitation – you should only collect data that is necessary for your purpose, and shouldn't store it for longer than necessary. You should think about appropriate technical and organizational measures (TOMs) to protect the processing activity, for example about how your CRM is hosted, how backups are made and how security updates are installed, who has access to the personal data, and how the people with access to the personal data can be trained. For example, such training might inform your employees that they can only use the data in the CRM for business purposes, but absolutely not for personal purposes like asking Gina from reception out for a date. | The way you describe this UUID, it is pseudonymous data (see GDPR Art 4(5) and Recitals 28–29). That is, it is not directly identifying, but you have a mapping between pseudonyms and identifiers that can be used to re-identify this data. Effective pseudonymisation requires not only that the data is logically separate, but that there are effective organisational and technical measures preventing re-combination by unauthorized persons. Alongside with encryption, pseudonymisation is one of the safety measures that the GDPR explicitly requires whenever appropriate (see Art 25, Art 32). Pseudonymous data is still personal data, because you can easily re-identify the data. The PII concept is US-specific and is misleading in a GDPR context, where it is not the inherently identifying characteristics of the information that matters, but the realistic ability of the data controller to single out data subjects to whom this data relates (compare Art 4(1) and Recital 26). However, were you to irrevocably erase the UUID–email mapping, things are more tricky. There is no longer any connection with directly identifying data, so this data might be anonymous. On the other hand, such a persistent UUID still allows you to recognize/distinguish persons, so it might still be personal data. This might be the case especially when the UUID is used in long-lived cookies of website visitors, thus matching the GDPR's concept of an “online identifier”. This conclusion could be avoided by limiting reuse of UUIDs, e.g. creating a new UUID after some context-dependent appropriate duration. The GDPR does not require all data to be stored in the EU, but requires international transfers of personal data to have sufficient protections. If you're processing these data in countries without adequate legal protections (like the United States), additional safeguards have to be used. Pseudonymisation could be part of such safeguards, and has been suggested by some data protection authorities in the wake of the Schrems II ruling. However, pseudonymisation alone does not make the international transfer legal, it is more of a strategy to reduce remaining risks. I think that your systems has a good chance of being OK, but not neccessarily so. If in doubt, perform a DPIA and possibly consult your data protection authority under GDPR Art 36. If feasible, storing/processing data only in the EEA or in countries with an adequacy decision will simplify compliance. Safeguards such as pseudonymisation could be strengthened by rotating UUIDs, and by restricting access to the table with identifiers. |
Is answering a question you are not sure about under oath perjury? Suppose I struggle to see at night, but was witness to a crime that took place and have been asked to give testimony. At the stand, I am asked whether I saw the defendant committing the crime, and although I am rather confident I did, I am not sure because the crime took place at night. However, instead of simply saying that, I say 'yes'. Assuming no one asks me at any point whether I have poor eyesight, have I committed perjury by not explicitly saying that I am not sure? I admit that this is a bit of a silly example, but it's the first thing that came to mind and sort of demonstrates the point. So to restate the question: Is answering a question with a yes or no perjury if you are not sure of your answer? Would that be considered not telling "the whole truth"? | In the United States, the question that determines whether it's perjury is whether or not you believe what you said was true. Whoever— (1) having taken an oath..., willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or (2) ... willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury. So if an attorney asks if you saw the defendant, and you believe you saw the defendant, "yes" is generally going to be the correct answer. You're free to qualify your answers or answer questions that weren't put to you, but you aren't obligated to do so. Generally speaking, our adversarial system puts the burden on the defense to ask if you're sure, how the lighting was, whether you were wearing your glasses, whether you were drunk, etc. | This wouldn't be customary and is probably improper, but the judge may have been trying to do you a favor. In the absence of being under oath, the judge could not consider anything said in your closing statement as evidence. If you are under oath, the judge can weigh something you say in your closing statement against the other evidence when making a ruling. | Yes. The jurisdiction I am familiar with is England and Wales. Conviction requires evidence (witness testimony is evidence) which proves the case "beyond reasonable doubt". It is open to the jury to find the witness so convincing that they find that they are sure the defendant committed the crime. In general of course, prosecutors prefer to have some supporting evidence (either additional witnesses, or circumstantial evidence - like DNA.) | So I'm fascinated with the OJ trial and I've read a ton about it. I'll try to answer your question both accepting your premise as true, and then also going into what actually happened. First of all, jury nullification cannot be overturned in the US. The double jeopardy clause forbids it. This is such a powerful tool, in fact, that there are strict rules that prevent defense lawyers from mentioning or even hinting at jury nullification, in front of the jury, in almost all circumstances. It doesn't mean D is safe from all legal liability. OJ, obviously, was found liable in the civil trial. Sometimes other jurisdictions can prosecute. For example, after the officers in the Rodney King beating were acquitted in state court, the federal government got them for violating federal hate crime statutes. Second, looking at your premise. If jurors think D is guilty, but also being framed, that's not necessarily jury nullification. Remember, a criminal defendant must be proved guilty beyond a reasonable doubt. That means that 'probably guilty' means 'not guilty.' That said, there may be times when a jury is convinced beyond a reasonable doubt of a defendant's guilt, but is so disgusted by the police tactics used in the case that they acquit. This would be jury nullification. What actually happened in the OJ case: Mark Fuhrman perjured himself on the stand. He lied and said he'd never said the N word, and the defense produced tapes of him saying it a ton. The defense recalled him to the stand. Because perjury is a serious crime, this time he came in with his own defense lawyer, and did nothing but take the fifth on the stand. In a genius move, OJ's defense team asked him whether he planted any evidence in the OJ case. He didn't deny it, instead he took the fifth (again, as he was doing to every question). This was enough to sow reasonable doubt about OJ's guilt based on the evidence in that trial (there's obviously no actual doubt, in real life, that he's guilty). So, what actually happened wasn't jury nullification. | In addition to David's answer - it's more than acceptable for a witness to say that they don't know the answer; it's a requirement of their oath / affirmation to say "I don't know" if they are telling: ...the truth, the whole truth, and nothingbut the truth.. | There is no legal requirement that a jury be composed of people demographically like the defendant (or the plaintiff), there is simply a requirement that the selection process give all kinds of people an equal chance at being empaneled. So being a different race or gender from one of the parties is not prima facie evidence of a biased jury. The statement that "The jury asked a question because some invoices were not attached to a statement and wanted to impeach the victim's testimony" is somewhat puzzling, since Georgia is widely cited as a state where jurors are forbidden to ask questions. Let us suppose though that jurors manage to communicate an interest in knowing a fact, such as "Do you have an invoice for X?", then the judge could decide whether that is a proper question. At that point, it moves from being a jury matter to a legal judge matter, and if the question was itself highly prejudicial, the case could be overturned on appeal. Alternatively, the way in which the question was framed by the jury could be proof of bias, e.g. "Please ask that lying %@!^* defendant to prove her ridiculous story". The defense attorney has entered an objection (if you don't object, you can't appeal), and perhaps if the question was legally improper then the verdict could be set aside. If the attorney failed to move for mistrial (if the question proves blatant bias) then that's the end of the matter, except for a possible action against the attorney. The implied questions about attorney conduct are hard to understand. An attorney may refuse to engage in a futile legal act, but this does not preclude an individual from seeking another attorney to file a motion or even attempting to file a motion on one's own (which is probably a futile act). However, I also assume that the victim did not have her own attorney and that this was a case between two insurance companies about individuals – a third party claim. In this case, the attorney represents the insurance company, not the victim, and has to be responsible to the interests of the insurance company. The attorney thus is obligated to not cost the insurance company a packet of money if there is no realistic chance of getting anything in return. The alternative would have been be to engage (and pay) your (her) own attorney. | "I don't recall" will protect you from perjury only if it's true. Let me try an example. You're asked: "Did Mr. Blatter hand you an envelope full of cash?" You say: "Not to my recollection." Now the government introduces a videotape of you receiving and counting the money, and a thank-you note you wrote to Blatter saying "Thanks for the awesome bribe!" You can defend yourself from perjury charges if you can convince the finder of fact that you had forgotten all of those things...but it's not very likely, is it? "I don't recall" isn't a magic bullet. It's like any other statement: it's perjury unless it's true. | Take the US federal perjury statute as an example: Whoever having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true ... The key word is material, meaning relevant, important, essential. From your description, the specific show that Jerry was watching is not material to the proceeding in which the testimony was given, so Jerry has not perjured himself. Other common law jurisdictions will likewise have materiality as an element of perjury. |
GDPR vs ICANN WHOIS Let’s start with some basic information: While a bit vague, for years you’ve been required to submit registrant, admin, and technical contact details. https://whois.icann.org/en/domain-name-registration-process Domain name registrants have certain responsibilities that are incorporated into these terms and conditions like payment of registration fees and submission and timely update of accurate data. In some cases, a person or organization who does not wish to have their information listed in WHOIS may contract with a proxy service provider to register domain names on their behalf. In this case, the service provider is the domain name registrant, not the end customer. Registrars are organizations accredited by ICANN and certified by the registries to sell domain names. They are bound by the Registrar Accreditation Agreement (RAA) with ICANN, and by their agreements with the registries. The RAA sets out responsibilities for the registrar including maintenance of WHOIS data, submission of data to registries, facilitating public WHOIS queries, ensuring domain name registrants details are escrowed, and complying with RAA conditions relating to the conclusion of the domain name registration period. Last Updated: July 2017 GDPR article 6 allows for processing of personal data on a contractual basis (section 1b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; Also section 1c processing is necessary for compliance with a legal obligation to which the controller is subject; And finally section 1e processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; So from the above information registrars are covered as they are under contract with ICANN to obtain and submit this information. The user is entering into a contract which requires information to be public. At any point in time the user can decide not to enter into the contract. Now technically speaking WHOIS data is not strictly required in order to facilitate domain registration. However you can argue the same for purchasing a house. It’s not technically required that your name be public record. But even in the EU your name is public record. https://www.eui.eu/Documents/DepartmentsCentres/Law/ResearchTeaching/ResearchThemes/EuropeanPrivateLaw/RealPropertyProject/GeneralReport.pdf Yet there is no exception for this within the GDPR. So the question is, how is ICANN under so much fire when EU’s own land registry violates the GDPR if we are to presume ICANN violates the GDPR. As my opinion sits I see multiple justifications within the GDPR that ICANN’s WHOIS can still operate legally. | For land ownership records and other similar scenarios such as business directors, the requirement for these to be public will be in legislation rather than a contract - this provides the legal basis, see GDPR Article 6(1c). Additionally when government departments are doing it they also have 6(1e) as lawful basis: "1. Processing shall be lawful only if and to the extent that at least one of the following applies: ... (c) processing is necessary for compliance with a legal obligation to which the controller is subject; ... (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" -- GDPR, Article 6(1c,e). I'm not familiar enough with the specific legislation that will apply here but pretty sure this will be the case, and having said this you may well find public registries also become less public going forward. The reason ICANN has come under fire, is partly because under GDPR privacy is a protected fundamental right and therefore to comply personal data should be kept private by default and privacy never something you would be required to pay extra for. Any contract ICANN have in place with their registrars will not override legislation, it is in fact the other way around. "2. The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons." -- GDPR, Article 25(2). This doesn't stop ICANN from maintaining a register of domain name owners (registrants), but it does mean they can't just publish all records upon request to anyone anymore - whether people will be granted access to personal data will now depend on if they have a lawful basis for this, and in these cases their processing of the personal data will be limited to those purposes. Being nosey doesn't count! "When assessing whether consent is freely given, utmost account shall be taken of whether, inter alia, the performance of a contract, including the provision of a service, is conditional on consent to the processing of personal data that is not necessary for the performance of the contract." -- GDPR, Article 7 (4) - Conditions for consent. What this means essentially, is that if the consent is conditional for the contract it will not be treated as freely given, and therefore not valid - it will no longer be acceptable to contractually bind the provision of a product or service with consent to publish personal data or any other form of processing such as marketing mailing lists. Looking now at the specific points you have raised: "GDPR article 6 allows for processing of personal data on a contractual basis (section 1b)" Whilst this is true, this is only part of it - it doesn't allow for unlimited processing for any purpose and sharing it with any people, if you look at Article 5(b) it states that the information is collected for specific explicit legitimate purposes. Each purpose requires its own legal basis and needs to be compatible with the principles of GDPR. Without consent, ICANN currently does not have a legal basis to make the WHOIS records public for EU citizens and should have adopted some technical controls to require them to opt-in if they wish to be included in the public register. They're coming under fire for non-compliance having been given 2 years to prepare and change their systems/processes. "processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;" Again whilst this is true, not all processing is necessary for the performance of a contract. In the same way people must give consent to receive marketing communications, they must freely give consent for their information to be shared/published (separate to the contract for provision of service) in the absence of other lawful basis for this processing. "Also section 1c, processing is necessary for compliance with a legal obligation to which the controller is subject;" There is no legislation which requires them to publish the personal data of domain name registrants. In this paragraph 'legal obligations' refers to those required by legislation (i.e. statutory obligations), not contracts (or non-statutory obligations) which are covered under Article 6(1b). "And finally section 1e, processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;" ICANN has no official government-assigned authority, and publishing the personal data globally is not in the interests of the data subject's or others' welfare or well-being - this is what is meant by 'public interest'. As far as I can see what ICANN are actually doing to comply seems to be accepted by the European Data Protection Board, they are only 'under fire' as you say because they are late in doing so. The deadline was 25th May 2018 and they had 2 years to prepare like all other organisations. | “From your perspective you should not worry about asking permission to use reCaptcha as it is not you who is processing the data it is google and any GDPR compliance falls on them.“ This is plain wrong. If a user visits your website you are the controller of data collected on your website. Regardless of what entity collects that data. However in my non-legal opinion reCAPTCHA falls under Article 6 section 1d and 1f. Also Recital 49. 1d: “processing is necessary in order to protect the vital interests of the data subject or of another natural person;” While you could argue in some cases (most probably) reCAPTCHA is used to reduce spam to a business entity thus not a “natural person”. 1f: “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.” Here is where the real ruling applies “Legitimate interests”. You as a business have a legitimate interest in reducing spam into your business. Not only does spam take up your time but it also takes up your resources. As to the extent in which spam takes up is dependent on the usage in question. But nearly everyone can safely assume reducing spam (one of the cornerstones of the GDPR) is a legitimate interest. Recital 49 (excerpt): The processing of personal data to the extent strictly necessary and proportionate for the purposes of ensuring network and information security, i.e. the ability of a network or an information system to resist, at a given level of confidence, accidental events or unlawful or malicious actions that compromise the availability, authenticity, integrity and confidentiality of stored or transmitted personal data, and the security of the related services offered by, or accessible via, those networks and systems, […] by providers of electronic communications networks and services and by providers of security technologies and services, constitutes a legitimate interest of the data controller concerned. This could, for example, include preventing unauthorised access to electronic communications networks and malicious code distribution and stopping ‘denial of service’ attacks and damage to computer and electronic communication systems. | Names clearly are personal data and so a good question to ask for GDPR compliance is: Do you need to do what you want to do in order to offer your product or service? For your scenario a common answer seems to be that websites ask for the users first and last name during account creation. The reason is that they need this information to confirm the identity of the account creator. But the public profile only displays a user name that the user can pick freely. In general there is no good reason to publically show the legal names of users so websites don't do it. So for your website ask yourself, why do you want to publically show the names of your users? If you have a good reason to do that specify it in the user terms and go ahead. If you don't have a good reason don't do it. | Consent for processing someone's personal data is only one of the possible requirements to process that person's personal data. The options listed in Art. 6.1 are (text in Spanish, with links to other languages): a. the data subject has given consent to the processing of his or her personal data for one or more specific purposes; b. processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; c. processing is necessary for compliance with a legal obligation to which the controller is subject; d. processing is necessary in order to protect the vital interests of the data subject or of another natural person; e. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; f. processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. Obviously, your case meets the criteria for c.1 So, you do not need consent from your hosts, and your hosts do not have to sign any consent and they cannot refuse to provide their data if they want to reside at your dwelling. The moment you ask your hosts any data to which you do not have a legitimate interest, you need the consent. And you cannot refuse hospitality to your hosts if they do not want to provide that piece of data. Anyway, maybe it would be a good idea to print a leaflet explaining why you require their data in case they have any doubts. 1 For the Guardia Civil, it would be c. and maybe a few more cases. | There are a few different grounds under which PII can be handled. Perhaps the most discussed at the moment of GDRP introduction is consent, because of the wave of consent-seeking. But there are a number of other grounds. "Necessary for contract execution" is a trivial one, to deliver a pizza you'll need an address. The relevant ground for sanctions lists is also pretty obvious in hindsight, you may process PII in order to comply with legal obligations. Note that this is still an integral part of the GDPR, not an exception to the GDPR. That means you need to apply all the basic GDPR rules. You need to explicitly store where you got the PII from, for which purpose, and you need to document how you're using it. Note that this might be hard - why do you need to store this data? Why can't you just check the list as the moment it's relevant? The GDPR for a large part depends on you justifying your actions, not just in hindsight but already up front. | StackExchange is a processor under GDPR because it processes the data you provide it when you sign up and input personal information. It's determined by an analysis of what function(s) the business is performing. If you are merely processing the data but don't have control over it (e.g. another business is using your software to do something with data that it is providing you) then you are likely to be a data processor. Conversely, if you control the data, you are likely to be a data controller. It is possible to be both a data controller and a data processor at the same time. That specific link in your post goes on to state: Our business customers may qualify as controllers when they purchase certain of our products and services. We act as processors on behalf of such Customers. This is referring to the Teams product that StackExchange offers or whatever the "internal company-only question and answer site" product they offer is called. | As I understand it, the GDPR does not permit sending of personal information (which includes the IP address) without prior consent by the user. That's not exactly true, consent is merely one of six possible legal basis for processing (article 6). For example, processing of personal data can also be lawful if it necessary to perform a contract, legally mandatory, or in the public interest. The court decision acknowledges that but rules out another basis in this case because it considers that it is possible to serve fonts without relying on a third-party ([…] der Einsatz der Schriftarten auch möglich ist, ohne dass eine Verbindung von Besuchern zu externen Servern hergestellt werden muss). Confusingly, it only refers to article 6(1)(f) when it seems to me that (b) would also be plausible but maybe this wasn't raised during the proceedings? If the data controller cannot invoke any other basis for the lawfulness of the processing then yes, the only thing left is asking for consent, i.e. invoking article 6(1)(a). But that doesn't mean that you should expect to be asked for consent each and every time your personal information is being used. The consent form on the site also implicitly assumes consent, which I thought was also a violation. Yes, implying consent doesn't really make sense under the GDPR definition (article 4, see also article 7): ‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action European data protection authorities have issued guidelines that detail what that means and clearly reject “bundling” different data processing. The regulation also makes it clear that data subjects should be able to withdraw consent at any time, which does not seem possible with the fonts on golem.de My reading of all this is that assuming consent because you are using a service (or even created an account or checked a box at some point) simply isn't valid consent. Either you don't need consent at all in the first place or what you need is freely given, specific consent and “implying” consent or bundling it with a registration process achieves exactly nothing. But this is still extremely common and it might take some time before enforcement and case law definitively settle this question. Smart data controllers trying to avoid collecting consent (like Meta) have abandoned any claim that signing up to the their services would constitute consent (because that's transparently not the case) and try to bypass the issue entirely using another basis like contractual necessity. This is also being litigated. I know that a EU regulation can be implemented and interpreted differently from country to country, and that a single court ruling in Germany doesn't even mean that the national law was correctly applied. From what I've read, I get the impression that this particular ruling was not unlikely to be overturned by a higher instance, if it came down to it. So my question probably both pertains to German law specifically and the EU regulation itself. That sounds more like the way EU directives work. Regulations are supposed to be immediately applicable (no implementation in national law necessary) with minimal differences between countries (except when they explicitely provide for that). Of course, enforcement would still mostly be in the hands of national court systems and (in Germany) provincial data protection authorities but there are mechanisms to ensure consistency (the European Data Protection Board, prejudicial questions to the CJEU, infringement proceedings from the European Commission…). | I'm pretty sure that under GDPR, you can indeed request them to send all data they have on you. If it's a complex request, they may charge you something like £10. If they have a lot of data on you, they may list the categories of data they have and ask you to pick one, rather than them having to collect and send everything. They should respond within one month, but iirc in the UK implementation, they can inform you (within that month) that they will respond within three months instead. For the rest, I only know current Dutch law. GDPR is not that different from what we already had (in general terms) and in many cases it even extends it. Under our law (WBP), you can also request a correction of the data in case it is incorrect, or deletion if they no longer need it for the purpose for which it was collected and stored. I don't really know how that works out in practice though, as Facebook can of course claim that "being able to connect you to your friends when you sign up for WhatsApp or Facebook with that number" is a legitimate purpose (in their eyes). They might also not have your full name and therefore not be able to connect your data to your request. Or, perhaps, they have only your full name (and there are probably more people with your name), so they'll have a hard time verifying that it's really your data which they would be handing over or deleting. The company is required to verify your identity before acting on your request. How they implement that is up to them. Under Dutch law, if I remember correctly, any data that can be connected to your person by any party is personally identifiable information (PII). While Facebook might not be able to find who's behind a phone number, your carrier most certainly can. Therefore, the data falls under PII protection laws and they will have to implement a way to verify you and get you your data. Finally, whether your local laws apply to Facebook, I don't know exactly. There's lots of information on this though, so you should be able to find it. Generally, countries say that if something happened within their territory (e.g. you signed up for WhatsApp while in the UK), their law applies. Companies, I've read, will instead try to claim that their main office is in SomeCountry and therefore SomeCountry's laws apply. But I'm pretty sure you'll be able to find a Facebook office somewhere where GDPR applies, so that's probably fine. While not an exact answer and while I am not sure about everything, I hope this gave you some pointers to go on! |
Domain name registered by co-founder's friend Founds of an informal organization that's been around for several years want to form an LLC. One of the founders (we'll call Bob) has a friend that own's the domain. Bob doesn't know how to manage domain registrations, so Bob told his friend it was okay to transfer the domain to one of the other founders responsible for IT (Joe). Their friend is hesitant for whatever reason; instead giving Joe access to the management of the domain. Joe doesn't want to push too hard and strain his relationship with Bob or make Bob's friend uncooperative. However he would still like to secure legal ownership of the domain by the business. What type of contract can Joe have Bob's friend sign, that establishes their business as the owner of the domain name without forcing Bob's friend to immediately transfer it to Joe or the business? | Transferring the domain to a single person before the LLC is officially formed would appear to be creating the same situation which you are trying to resolve currently. The percentage of ownership and the eventual financial contribution to the renewal of the domain name by each prospective member should be clearly settled before any transfers of ownership or formation of LLC occur. All of these matters can be negotiated before and included within the articles of incorporation of the LLC. Transferring ownership of the domain before the LLC is formed appears to be premature at this stage of the formation of the concern and might lead to further confusion as to whom owns what and what their responsibilities are and will be in the future relevant to the asset. | The DMCA prohibits circumvention of technological measures that effectively control access to a copyrighted work. So you can't legally "crack" the software, period -- even if you own a disc containing the software and have a valid license to use it, a license to use the work is not authorization to circumvent access controls. So if the disc is copy-protected, by my understanding of the DMCA, you're kinda screwed. (The company might be willing to provide you a replacement copy, even if only to maintain the illusion that the software is "licensed, not sold". But you can't make one yourself.) Likewise, if you have a copy of the disc but have lost the license key, you're screwed. Even if you could prove beyond any doubt that you are the licensee, there's not any law i'm aware of that would compel the copyright owner to provide you another license key. And courts have held that distribution of license keys without authorization is a violation of the DMCA. So whoever might provide you another key, if they're not the copyright holder, has broken the law. If you managed to copy the disc from a friend (without circumventing any kind of copy protection), and had your own license key, you might be in a better position. Many EULAs allow you to make a backup copy. Even if they didn't, copyright law does, so there's a possible case for fair use. | Can a city request deletion of all personal data that uses a certain domain for logins? Well, they can, but they have no legal backing to make it happen. Their chances of succeeding are about as good as me requesting a Ferrari, a Yacht and a Mansion. I can make that request. People will laugh. I will not get it. I'm a little worried that I shouldn't allow certain domains to be used as logins in the first place, especially ones that might be school related You have no way to know who owns what email address. And it's none of your business. Your only interest should be in whether the address is owned by the person that is creating the account. You probably already do that by sending a confirmation link to the email address when people sign up. I'd like to have some idea for future reference if there's any case where the GDPR would require me to comply with such a request The only way you have to comply with such a request is if the owner can prove their identity. As far as I understood, the "Finnish city" was three degrees away from that. They could not provide any proof they are who they said they are, they could not provide a finite list of accounts they claimed to own and they could not even provide proof they own those accounts. They literally just wrote an email with zero legal meaning. I want to figure out the right way to reply to emails like this one The correct way to handle this is have a feature on your website where the account owner can delete their own account. GDPR compliant. Then you make a text template explaining how to use that feature and reply with that template to every request, no matter how stupid (like this case) they are. If they cannot identify themselves to you by proving they have access to their "own" email, they have no business wasting your time. Legally, they could provide you with a different method of identification. In case of a Finnish school, that would probably need to be power of attorney from all children's legal guardians and a specific way to identify the accounts that is consistent with the data given (for example if they entered their full name and address on your website). You would probably in your rights to demand a certified translation if it's all in Finnish. Apart from the fact that you as a private US citizen have no real means to check the validity of all that paperwork, personally, if I saw hundreds of pages of certified translated paperwork, I would probably just comply. Not sure it it were actually enough, but it certainly gets an A+ for effort to delete data from a private website. But a real lawyer might give better advice with a real case on their hands. Is deleting the data actually more of a legal liability than not deleting it in some cases? (People shouldn't be able to delete other people's accounts.) Indeed. You should not delete people's data because a random punk on the internet sent you an email. You need to identify who the request is from and if they are allowed to make such a request. Whether you have a legal duty to actually keep data, is up to you or your lawyer to find out. It depends on your data and laws. It is perfectly legal to make a website with a textfield that deletes any data you enter after a second. Destruction of data you own is only a problem if you break other laws with it. For example the IRS might not be amused if you destroyed invoices and other proof of taxable income. "Some dude claimed I must in an email" is not going to fly with them. That said, again, please, identify who you deal with, find out if their claim is valid. Don't do stuff because random internet punks write you an email. Because the next mail you get, will be from a Nigerian Prince. Please wisen up before opening that one. People on the internet, through stupidity or malice, might not have your best interests at heart. Don't believe random emails. | Let me be sure that I understand the situation. You set up an account with Big Company, which uses BigCo as a trademark. You want email about that account to reach you with a unique address, so you set up '[email protected]" and gave that as your email when setting up tha account. You don't plan to use that address for any purpose but communications from BigCo to you and from you to them. (Of course these aren't the actual names.) Have I understood the situation correctly? It seems that you ar not using 'BigCo" in trade, nor are you likely to be confused with an official representative of BigCo, so you are not infringing their trademark. However, someone using such an email more generally could perhaps be so confuse, so BigCo has a somewhat legitimate concern, as they cannot know the very limited use you plan to make of this address. The only way that the could force you not to use such an email address would be via a court order as part of a suit for trademark infringement, whcih under the circumstances I doubt they would get. However, unless they have some sort of contract with you to the contrary, they can control who registers on their site. and could refuse to register you using an email address that includes their name or alias. Convincing them to accept your registration, even though it does no harm to them, will almost surely be more trouble than it is worth. Give them "[email protected]" or something else that is not their name, but will suggest their name enough that you will know who it is. This will serve your purpose fully, and avoid a long argument with people who are reading from a script (once you get past the automated process, if you can even do that). This is all assuming that I have understood the situation correctly. I am also largely assuming US law, since you didn't mention a jurisdiction. (EDIT: UK law should not be very different on these points.) | This is similar to giving a hammer and needing to state to one is not responsible if the taker uses it to hit their head with. I believe this is the wrong analogy to use here. It would be more like giving somebody a hammer and saying you are not responsible if the head flies off and injures you. There is a concept in "things" you obtain called "fitness for purpose", so if you download open-source software like a registry cleaner, and it deletes your entire registry, the "WTFPL" doesn't absolve the authors of liability. Explicitly denying any kind of "fitness for purpose" or warranty helps shield the author from legal claims (even if they are meritless) because it kills it out of the gate. It's possible that the WTFPL license granter/author could still be sued and have to defend themselves in court because it isn't explicitly stated that there is no warranty or fitness for purpose. Open source does not mean that it's "use at your own risk", which is why there are so many types of licenses and disclaimers. From comments: Thank you for this very clear answer. Does the fact that someone willingly retrieves free code with no control of the provider changes anything? (vs a software vendor which provides code suitable for A and B, in exchange for money) I think closer to your hammer analogy where I would sue the producer of hammer XXX, a hammer I found on the street or which was given to me without involvement of vendor XXX. No, this doesn't change anything. The software vendor here is the person who writes the code, even if they don't charge for it. They are the ones who license the software and they are the ones who take some level of responsibility for it. In this case, the software author is the "hammer producer" that you would sue... If you buy "Registry Cleaner XL" from Best Buy and it bricks your computer, you don't sue Best Buy, you sue the person who authored the software. In pretty much every case, the author is the responsible party, not the vendor, and it is the author who licenses it, not the vendor (the vendor just acts as an intermediary). | It will depend on the specific facts Let's define a few terms: Company A was the original company, Company B is the current company (which may be the same as Company A or a different company), Owner A was (and may still be) the shareholders of Company A, Owner B are the shareholders of Company B, the Business is the enterprise that was carried on by Company A and is now carried on by Company B, the Domain is the licence from the Domain Name Registrar which may be owned by any of the above (except the Business because it's not a legal person). Owner A and Owner B might be an individual natural person or an individual company or a group of natural persons/companies. Both the Business and the Domain are assets just like a car or office furniture that can be bought and sold independently of the Company that owns them. Who owned the domain registration? This might have been Company A in its own right or Owner A in which case Company A would be using it under some sort of licence, probably an implicit and undocumented one. Was Company A or the Business bought? Both are possibilities, see Is it possible to keep assets from being taken when a company is bought by another? If the company was sold the Company B is Company A. If the business was sold then Company A is different from Company B. Company A owned the Domain and Company A was sold Company A/B continues to own the domain. There is no room for dispute here. Owner A owned the Domain and Company A was sold Owner A continues to own the domain but Company A/B retains the benefit of the licence. There is scope for dispute over the terms and duration of that licence. Company A owned the Domain and the Business was sold The terms of the contract would need to be consulted to determine whether the Domain was part of the assets that comprised the Business. There is scope for dispute here, see the Peanut Butter Wars over whether trade dress was part of the business (spoiler, it was). If it was, then Company B owns it even if it is legally still held by Company A - they would be holding it on trust for Company B pending legal transfer. There is no scope for dispute here. If it wasn't, then one has to ask how has Company B been using it for 7 years? There is scope for dispute here. It's possible that they were using it under a licence, if so, what are the terms? It's also possible they have a right to it as a result of other IP they own, usually a trademark. Owner A owned the Domain and the Business was sold The terms of the contract would need to be consulted to determine whether the licence in the Domain was part of the assets that comprised the Business. There is scope for dispute here. If it was then Company B retains the benefit of the licence. There is scope for dispute over the terms and duration of that licence. If it wasn't, then one has to ask how has Company B been using it for 7 years? There is scope for dispute here. It's possible that they were using it under a licence, if so, what are the terms? It's also possible they have a right to it as a result of other IP they own, usually a trademark. | No This summarizes the situation with Disney specifically. The Disney trademarks are so ubiquitous and recognizable as being Disney's and not, for example, yours that your use is bound to create confusion in the minds of the public that your business is in some way associated with Disney. That is the essence of trademark infringement. In particular, where your business has nothing to do with the characters it is clear that you are only using them for the cachet of the Disney reputation. Disney will defend their trademarks - this is not at all unlikely. | Unless you were operating under a non-disclosure agreement he (and you) can use any information that he learned unless it violates IP law. It sound like what you told him is generic (if expert) views on high-level approaches to software design. That is, you didn't give him slabs of code that you own the copyright for or disclose trade secrets that you own. That sort of advice is freely usable by him. There is a reason that consultants in every field don't give away their advice before signing the contract. Now you know what it is. |
Requesting money so they won't go through insurance, but they already have My daughter backed into a parked car which caused minor bumper damage to the car. She found the owner and exchanged info. Next day he puts pressure on me on how I don't want my insurance rates to rise, so bring $1k cash and meet him, then he won't file. However, I find out through insurance that he had already filed the day of the accident. I had decided to not give him money as I really didn't like the pressure and having to deal with him. He definitely was attempting to commit what I would deem fraud, how should I be addressing this? | If he is still pressuring you for the money even after filing insurance, talk to your city or county prosecutor's office. If you call the police, they may say they're too busy to deal with it and that it's a "he said-she said" situation anyway. But if you go to the local prosecutor, they should be more interested, as this could be a felony, considering the amount of money demanded, and they can instruct the police to help investigate. | If you want to get out, and are willing to lose $270, you can not sign the lease and demand a return of your security deposit. You could ask for a return of the other fees as well, but you are less likely to be successful. They would probably have trouble enforcing a security deposit against you if you didn't have a lease with them, and would probably have trouble demanding you sign a lease when they changed the unit. You should probably get it all back, because you applied for it, but it probably isn't worth litigating over. I would also encourage you to turn to social media sites if they have one, or to sites like Yelp, if they do not. Many businesses are sensitive to this and if you are truthful if could provide you with some leverage. | There have been cases in the UK where paying someone's legal bills was interpreted as joining their case. So when A with no money libels someone, and B with deep pockets pays A's lawyer, then B risks being held liable for damages if A gets convicted. So B should be very careful. Just giving you money is probably the safest. But attorney-client privilege is between attorney and client. I have been laid off twice with my company asking me to take an employment lawyer and paying for it. (Interestingly each time the bill was exactly the maximum amount the company was willing to pay :-) It would have been absurd if my company could demand information that is under attorney-client privilege just because they paid the bill. Why did two companies pay the lawyers bill? Because that way they ensure that the separation is without problems. The lawyer explained the settlement contract and what it meant exactly. They also checked that the contract didn’t contain anything unacceptable which the company would have fixed. So if I had tried to sue them later I would have no chance to win (but there was no reason to sue). Another reason not to sue was that the company offered I settlement that was very significantly more than was legally required, but if you sued them you would only get what you got in court - most likely less than you would get without suing. So basically they paid to make sure I would have no reason to sue them later. | This is a context where you need to lawyer up. There are two issues, his share of the costs, and his permission to construct in part on his property. You mother has the same rights, so she likewise can refuse to sign off on his scheme (the lawyers negotiate a resolution). Assuming both parties are insured and (to make it more complex) have different insurance companies, the companies limit how much they will contribute for their part of the damage. Normally, you find a contractor who will do it for a given price, let's say $10,000, and the parties split the cost. Both parties have an interest in the choice of contractor because of cost issues, and quality of product and service (though the insurance company cares about the cost). If one of the parties is a contractor, they too can legitimately submit a bid, and then the parties can decide which is the best bid. It is not fraud if a contractor, who is an insured, submits a bid and makes a profit on the job. It would be fraud if that party withheld material facts from an insurance company. In the context of massive disaster insurance claims, the insurance companies may not perform a rigorous investigation (e.g. may not ask for multiple bids). It would then be a material fact that one of the insureds stood to profit from this arrangement, so the insurance companies would likely wish to see evidence that the costs were not unreasonably inflated. If the neighbors bid is in line with industry standard (and the insurance companies know who the contractor is), there is nothing fishy about the arrangement. This assumes that both parties are being cooperative with each other. When that is not the case, lawyers are good at getting cooperation (not letting the other party push their client around). | (Converting comment into an answer) You could sue for criminal damage, if any actual damage is caused during the removal of those notices - however, that will cost you an initial outlay in solicitors fees and court costs and isn't guaranteed to have a successful outcome. You could also just take this as a learnable event and not park in other peoples spots? The owner of the parking spot may have the legal right to have your car removed at your expense, and/or issue you with a penalty charge if suitable notices have been posted, so you might consider yourself to have got off lightly here perhaps? | It is a principle of equity (of which damages are a part) that you are not entitled to be enriched. Let's say that the first collision did damage costing $500 to repair. If after the second collision the cost of the repair is now $700, the first driver is liable for $500 and the second for $200. That said, let your insurer sort it out - that's what you pay your premiums for. | From a legal perspective co-signing a loan isn't the same thing loaning the money to the other co-signer. When you co-sign a loan with someone else both you and the other person are equal parties in the loan, both jointly responsible in fully paying off the principle and interest. If loan is defaulted on, the bank can pursue legal remedies to try to recover its money against either or both of you. If you end up having to pay part or all of the loan, then whether or not you can recover any of that money will depend on whatever agreement you made with the other person. Given that you probably wouldn't a have a signed written agreement with the other signer in case like this, it'll probably come down to whether or not you can prove (on the balance of probabilities) that the other party promised to you to pay off the full amount of the loan. It will help if the loan is specifically tied to a car, a house or other property that the other party benefits from but you don't. Note that you'd have to give serious consideration to whether the other party can actually pay the amount owed. There's no point going to court to obtain an unenforceable judgement. I also should say that from a financial perspective it does make some sense to think of it as if you were loaning out the money yourself. While there's a big and significant difference between the two, in that your bank account isn't affected unless the other person defaults, if they do the result is going to be pretty much the same. Indeed in that case it's not much different than just giving the other person the money. When co-signing a loan you really need to trust that other person. | To start off, you appear to be confusing assault and battery. Assault does not require physical contact in order for it to occur. Verbal assault is still a crime, but in your situation it doesn't appear that any verbal assault has occurred - he is not actively threatening you with harm, and you are not in fear of being harmed. Yelling can sometimes qualify as verbal assault, but any form of verbal assault is very hard to prove because it leaves no evidence. Unless someone other than the two parties involved comes forward, it likely won't go anywhere. Assuming this has been going on for some time, what you appear to be experiencing is harassment which usually qualifies as a civil matter, and police will not take any action other than asking one of you to leave in order to resolve the issue. Most often, they will ask you (as the person being harassed) to leave, but that can also be in your benefit. If you can prove the other person's harassment caused you to have to leave in order to be comfortable again, then you can claim damages and can sue that other person for the harassment - basically suing for damages of not being able to live in and enjoy your residence which you pay for, as well as any additional costs you encountered by having to find an alternate place to live because of their actions. Again, this is difficult to prove without someone else who has witnessed the continued harassment stepping forward (e.g. your guest who might have only witnessed it once is probably not an incredibly strong witness, because harassment is often defined as having persisted over time, and they cannot testify to more than what they saw in one night). The case would likely just devolve to a matter of "he-said" between the two of you - he will likely claim you just didn't like him and are making things up to get money out of him. You'd need to make sure you have other evidence that supports your side of the story. As far as claiming self-defense, my completely non-legal and mostly combination of "I wish this were common sense" and "I hate when people try to justify unneeded violence" advice is never rely on the self-defense plea. Unless you are in fear of your life, your best course of action if he threatens violence or actually hits you is to leave and let the police handle it. If you have physical marks on you and he has none on him, the case becomes much more clear-cut. If you fight back, and you both have marks, then it again becomes a case of "he-said" and it's hard to prove who initiated the confrontation without cooperating witnesses, and you'd likely both end up being arrested when the police showed up if they can't determine who the instigator was. Just because you know something was in self-defense doesn't necessarily mean the police, a judge, or a jury will believe you. Ultimately, if you're uncomfortable with the place you're living, you should start planning to move elsewhere immediately (which you appear to be doing). If you can both a) avoid financial damages to yourself by preventing yourself being put into a situation that requires you to move quickly without much planning and b) prevent the continued harassment - then you should. Don't let the pot just keep boiling over until it explodes all over the kitchen. You have the power to make this stop too, and you shouldn't rely on other people making the situation go away for you (e.g. your landlord is bound by a contract, and evicting a tenant based on your word can open them to a lot of legal troubles - they have to be very careful with how they handle such a situation). Yes, it sucks that it's not your fault you have to go through the extra effort or move away to resolve the situation, but getting yourself out of the situation should be your number one priority, and doing it yourself is often the easiest solution. |
If a retailer sends you something you didn't order, can you keep it? This Consumerist article discussing a Wal-Mart shipping mishap involving a customer receiving extra iPods argues that the FTC ruling regarding unsolicited goods means that you can keep good as a result of a shipping error. That is, if you did solicit goods, but the wrong ones were sent. When I've tried getting more information on the legal context regarding this law in the USA, I seem to mostly find opinions and not any real citations or analysis of legal precedence and regulation. Like the Consumerist article, they don't seem to be clear depictions of the legal environment. It seems that many retailers operate under the assumption that if they make a mistake and ship the wrong thing, but the original Rule's wording doesn't seem to account for errors: Unordered Merchandise Whether or not the Rule is involved, in any approval or other sale you must obtain the customer’s prior express agreement to receive the merchandise. Otherwise the merchandise may be treated as unordered merchandise. It is unlawful to: Send any merchandise by any means without the express request of the recipient (unless the merchandise is clearly identified as a gift, free sample, or the like); or, Try to obtain payment for or the return of the unordered merchandise. Merchants who ship unordered merchandise with knowledge that it is unlawful to do so can be subject to civil penalties of up to $16,000 per violation. Moreover, customers who receive unordered merchandise are legally entitled to treat the merchandise as a gift. Using the U.S. mails to ship unordered merchandise also violates the Postal laws. Are there other regulations that apply, or is this the end-all be all? Can terms-of-service agreements with online retailers stipulate that you agree to return incorrect shipments? | 39 USC 3009(b) says that Any merchandise mailed in violation of subsection (a) of this section, or within the exceptions contained therein, may be treated as a gift by the recipient, who shall have the right to retain, use, discard, or dispose of it in any manner he sees fit without any obligation whatsoever to the sender. and (a) prohibits "the mailing of unordered merchandise". (d) then says For the purposes of this section, “unordered merchandise” means merchandise mailed without the prior expressed request or consent of the recipient. If you previously expressly request a jar of herring and they deliver a jar of herring, you have to pay for it. If instead they send you a jar of honey, then since you did not expressly order a jar of honey, they have violated the law. It doesn't matter whether they deep-down intended to send a jar of herring and accidentally sent honey, or they deep-down deceptively, deliberately and maliciously sent you honey – you still didn't order honey. So it isn't necessary for the law to say anything about error, since the effect of the law is clear enough without saying "whether deliberately or by error". TOS wording cannot override federal law. | No If the price advertised is not honoured by the business and you are asked to pay a higher price, you do not have an automatic right to buy the item at the special offer or sale price. As long as the shop or business tells you before you pay that the higher price applies, you have the option to either buy it at the higher price or decide not to. However, the shop or business may be in breach of consumer law in relation to misleading advertising. The prosecution (or not) of the misleading advertising is the government’s task, not yours. This is a common formulation across Common Law jurisdictions as it a codification of the historic common law position. An advertised price is not an offer capable of acceptance, it is an invitation to treat. That is, it is an invitation for you to make them an offer and the price that is likely to be accepted. It is overlaid with later developments in consumer protection surrounding false advertising and misleading and deceptive conduct. | In simple terms, the only basis for the complaint is that the defendant did not ship the toys, not that the defendant violated federal law by their actions. No federal law mandates the shipping of toys, whether banned or unbanned. | According to BGB §447, by default the purchaser is liable if a purchased good is damaged/lost in transit: § 447 Gefahrübergang beim Versendungskauf (1) Versendet der Verkäufer auf Verlangen des Käufers die verkaufte Sache nach einem anderen Ort als dem Erfüllungsort, so geht die Gefahr auf den Käufer über, sobald der Verkäufer die Sache dem Spediteur, dem Frachtführer oder der sonst zur Ausführung der Versendung bestimmten Person oder Anstalt ausgeliefert hat. "Erfüllungsort" is a synonym for "Leistungsort", and according to BGB §269: § 269 Leistungsort (1) Ist ein Ort für die Leistung weder bestimmt noch aus den Umständen, insbesondere aus der Natur des Schuldverhältnisses, zu entnehmen, so hat die Leistung an dem Ort zu erfolgen, an welchem der Schuldner zur Zeit der Entstehung des Schuldverhältnisses seinen Wohnsitz hatte. So, if I am reading the BGB correctly, then it's you, the purchaser, who bears the risk of the goods getting lost during transport. The seller probably has the obligation of helping you to make a claim against DHL. But the loss of the package is between you and DHL, I'm afraid. Notes: This only applies to purchase from a private individual. If you, as a consumer, purchase from a business ("Verbrauchsgüterkauf"), the business bears the risk of shipping (BGB §474). There is an article on eBay's help pages which also explains this: eBay: Versandrisiko für Käufer und Verkäufer All this probably only applies if both seller and purchaser live in Germany. For international deals, the rules are (even) more complicated... | Yes A creditor (or alleged creditor) in the US may report such a debt, but must include in the report the information that the debt is disputed, if the creditor has been informed in writing that there is a dispute. If the consumer disputes that debt is valid that is a "factual dispute". That would include claims that goods ordered were never delivered, that the wrong goods were delivered, or that the goods were damaged or non-working at the time of delivery. One relevant law is the Fair Credit Reporting Act. Under § 611 of the act (15 U.S.C. § 1681i) a consumer may file a notice of dispute with a credit reporting agency (CRA). The CRA must re investigate the issue, and may ask for confirming information from the merchant or other person who initially reported the information (known as the "Furnisher" in the law). There is a set of procedures for handliung such disputes. Information found to be "Inaccurate or Unverifiable" must be removed. Subsections (b) and (c) of thsi section provife that: Statement of dispute. If the reinvestigation does not resolve the dispute, the consumer may file a brief statement setting forth the nature of the dispute. The consumer reporting agency may limit such statements to not more than one hundred words if it provides the consumer with assistance in writing a clear summary of the dispute. (c) Notification of consumer dispute in subsequent consumer reports. Whenever a statement of a dispute is filed, unless there is reasonable grounds to believe that it is frivolous or irrelevant, the consumer reporting agency shall, in any subsequent report containing the information in question, clearly note that it is disputed by the consumer and provide either the consumer’s statement or a clear and accurate codification or summary thereof. Section 616 of the act (15 U.S.C. § 1681n]) provides penalties for wilful noncompliance, and section 617 of the act (15 U.S.C. § 1681o]) provides penalties for negligent noncompliance. These include for wilful noncompliance actual damages, statutory damages of up to $1,000, punitive damages if the court thinks such proper, and "the costs of the action together with reasonable attorney’s fees" for winning cases. For negligent noncompliance actual damages plus costs and reasonable attorney’s fees are allowed. See also the Wikipedia Article on the Acty, "Summaries of Rights Under the Fair Credit Reporting Act (Regulation V)" from the Federal Register, and "Understanding the Fair Credit Reporting Act" from Experian (a major credit reporting agency). 15 U.S. Code § 1692g which is part of the Fair Debt Collection Practices Act provides that if a consumer notifies a collector within 30 days of the initial debt collection attempt that the debt is disputed, collection attempts must cease until the collector verifies the debt, or obtains a certification from the creditor. Section 807(8) of the FDCPA (15 USC 1692f) prohibits: (8) Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed. See also "Dealing with Debt Collectors: What You Should Know" | Does the shipping company have any legal claim to thes fees from the recipient? No. There is no contract between the recipient and the company. In fact, the company's attempt to charge twice for the same service is unlawful. The company's requirement for the sender to fill out paper work and pay fees reflects that the fees are part of a contract to which only the company and the sender are parties. The recipient is merely a beneficiary of that contract, and as such he has no duty to provide any consideration for the benefit of the company. Additionally, the company's failure at delivery to inform the recipient about any pending fees further weakens the allegation that the recipient ever had any obligation toward the company. The company prevented the recipient from making an informed decision when receiving the package, which implies that the sole interaction between company and recipient (i.e., the delivery) falls short of formation of contract. | Two people exchanging goods or services on a commercial basis and then pretending it was two gifts is tax evasion. It's not a gift. It's a commercial sale that you lie about by 'putting' a different 'label' on it. Sometimes two people will give mutual gifts, e.g. if you come to my wedding: I give you dinner, you give me some kitchenware. Yet there's nothing commercial about it. So that's not income for either party. However, if you're talking about two businesses making sales to each other, that is very much income, regardless of what you badge it. | There is, in most countries at least, no law requiring a business to treat a customer fairly. In general, a business may refuse to serve a would-be customer for any reason or none, provided that the reason is not membership in a protected class (racial, religious, ethnic, or sexual bias, mostly). Exactly which classes are protected depends on the local law (in the US, there can be such laws at all of federal, state, and municipal levels). If a customer is asked to leave and does not do so, s/he could be charged with defiant trespass (or local equivalent). More likely, security, or the police, could simply escort the customer out of the business, using as much force as is reasonably needed for that purpose. Unless there are grounds for action not mentioned, I see no basis for a successful suit by the customer. |
How does the GDPR apply to software developed by one company and used by another? Question I work for a bespoke software development company and I've been doing a lot of reading about the GDPR before it comes into force next year. A lot of it makes sense, however I'm really struggling to find out what effect this has on us - specifically the impact when we write software that another company uses to process their customers' data. Are we a data controller, processor or neither in this case? If we had direct access to customer data for testing the software I'm pretty sure we'd be a data processor, but does this still apply if we don't have access to (nor host) the data? Could some kind soul please help me understand? Sources For reference here are the main sources I've consulted (plus lots of fruitless searching...): https://ico.org.uk/for-organisations/guide-to-the-general-data-protection-regulation-gdpr/ https://ico.org.uk/media/for-organisations/documents/1546/data-controllers-and-data-processors-dp-guidance.pdf Unfortunately most of what I've read deals with companies providing a service (building and running the software themselves) rather than just building the software. | If you are not processing the personal information of EU citizens yourselves then you are unlikely to be classed as data processors under GDPR (check Article 3: Territorial Scope, p.32-33). If you were to operate a Software-as-a-Sevice (SaaS) solution then you would be a data controller/processor (or both) and GDPR would certainly apply if you have EU citizens as customers/users. While I can't see any reference to software vendors in the GDPR text, as a software vendor it would be in your interest to ensure your products meet the criteria set out in Article 25 (Data Protection by design and by default, p.48) in order to help your customers to comply, such as: Implement appropriate technical measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects. Implement appropriate technical measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons. These along with similar organisational measures are the responsibility of the data controller, but unless your software helps them to comply they may be forced to consider alternative solutions which reduce their overall risk. If your software already has a number of such controls in place it may be worth putting a white-paper or similar communication together which can inform your customers of how your software helps them to comply. There does not appear to be any direct liability to the software vendor through GDPR. If a data breach is the result of a design flaw or implementation bug in the software and your customer gets fined as a result, they may be likely to pursue you on grounds of the software not being fit-for-purpose and lacking the appropriate technical controls required to ensure data privacy. In this event, your defence will rely upon records of designing and implementing controls, records of software testing and remediation, and having in place suitable procedures to ensure security patches can be quickly deployed to your customers when required. Further clarification as requested: If your organisation doesn't process the personal data, doesn't have any third parties process it on your behalf (includes hosting companies) or have any access to it ever, then you're neither a controller or processor. However, if your customers ever send you personal data or grant you temporary access to personal data as part of troubleshooting issues with your software, then you would be a processor in this context and would need an appropriate contract in place and would need to ensure the appropriate technical and organisational controls are implemented to comply with GDPR and reduce risk of a personal data breach. Additionally, if international data transfers take place as part of this (e.g. sending/accessing files over the Internet) you would need to ensure your organisation is able to provide an equivalent level of protection for the rights of the data subjects - for example if you are in the U.S. you would likely need to voluntarily join up to the EU-U.S. Privacy Shield or use the EU's Model Contract Clauses within your contracts in order for it to be legal for EU-based businesses to use you as a data processor. For more information about international transfers read the EU's Data Transfers outside the EU page. Ref: GDPR | I'd rather not, but this might be compliant if you make sure that the personal data under your responsibility remains secure and protected even if it is processed abroad. Since the UK has left the EU, it is sometimes necessary to distinguish between implications of the EU GDPR and the UK GDPR. These are functionally equivalent, but in the matter of international data transfers the practical details have diverged. In my answer that you cited, I argued that any website processes personal data, and is thus potentially in-scope for the GDPR. If you cause another organization to process this personal data outside of the UK, you are performing an international data transfer (called “restricted transfer” in UK guidance). For example, such non-UK processing occurs if you use cloud services that run outside of the UK. The UK ICO has guidance on international data transfers. As in an EU GDPR context, you can only perform the transfer if the data remains suitably protected, or one of the exceptions applies. The data remains suitably protected if the target country was attested and “adequate” level of data protection, or if you have implemented appropriate safeguards. As of 2022, the list of countries considered adequate is generally equivalent to the EU list of adequacy decisions. Notably, the US is no longer on that list after the Schrems II decision that invalidated the Privacy Shield Agreement. Since this decision was made before Exit Day, it also applies in the UK. This leaves “appropriate safeguards” for UK→US restricted transfers. In the linked ICO page, read the section Is the restricted transfer covered by appropriate safeguards?. In brief, you will need to perform a Transfer Impact Assessment, and sign Standard Contractual Clauses with the US data importer. In a Transfer Impact Assessment (TIA), you check that the data remains protected despite the transfer into a country without an adequate level of data protection. There is no official guidance on conducting a TIA, but the IAPP has a template and the EU EDPB has recommendations on supplemental measures to protect data transfers, which might reduce the risk and affect a TIA in your favor. It's worth noting that the EDPB recommendations were written in the wake of the Schrems II ruling, and can be summarized as “compliance is impossible when using US-based cloud services”. But this is your assessment, and TBH it seems the UK is a bit more relaxed than the EU in this regard. The Standard Contractual Clauses (SCCs) are a pre-formulated contract that binds the foreign data importer to handle the data properly. In essence, this translates relevant aspects of the UK GDPR into contract law. Many service providers already provide a Data Processing Agreement that includes SCCs by reference, but you'll have to make sure that these contracts have been entered in a legally binding manner. Sometimes these apply automatically as part of the terms of service, sometimes you need to explicitly sign these documents. But SCCs are one detail where UK GDPR compliance and EU GDPR compliance diverges a bit. The old EU SCC templates from 2004/2010 can no longer be used and have been replaced. For compliance with the EU GDPR, the new 2021 SCCs must be used. For compliance with the UK GDPR, you have two options. You can either use the 2022 International Data Transfer Agreement (IDTA), or you can use the 2021 EU SCCs along with the 2022 UK International Data Transfer Addendum which modifies the EU SCCs in some details. Don't want to deal with TIAs and SCCs? Switch to a hosting provider that only processes the personal data under your control in the UK, or in a country with an adequacy decision (e.g. EU, Canada, Israel). | The scope of the GDPR is entered when personal data is being processed in a structured manner. Personal data is any information relating to identifiable data subjects (definition in Art 4(1)). "Peter attended the meeting on the 14th" is personal data. "That woman with the blue handbag said she wanted to return on the 25th" is personal data. However, aggregate statistics do not relate to individuals, and are typically not personal data. "On the 14th, we had 25 attendees" is not personal data. Not all use of personal data is within the scope of the GDPR. For example, the GDPR would not apply if two organizers talk about who attended the meeting. However, Art 2(1) says the GDPR applies when personal data is processed wholly or partially with automated means (e.g. computers, smartphones), or forms a filing system or is intended for a filing system (e.g. keeping notes on attendees, keeping attendance lists) If GDPR applies, the organization would be responsible for ensuring compliance with its rules and principles, summarized in Art 5. Primarily, this means: having a clear purpose for processing selecting a suitable Art 6 legal basis for that purpose (e.g. consent or a legitimate interest) only processing the minimum data necessary for achieving that purpose determining and implementing appropriate technical and organizational measures to ensure compliance and security of the processing activities preparing for data subject rights, in particular by providing an Art 13 privacy notice when collecting data from the data subjects There are of course some complexities in the details. When the legal basis is "consent" (opt-in), the organization would have to ensure that this consent was freely given and sufficiently informed. Per Art 7(4), consent would not be freely given if that consent was a condition for access to the meeting. Using "legitimate interest" (opt-out) can be more flexible, but it requires performing a balancing test to show that the legitimate interest isn't outweighed by the data subjects' interests, rights, and freedoms. Roughly, relying on a legitimate interest is appropriate when the data subjects can reasonably expect the processing activity to occur. Regarding point 1, keeping general counts and aggregate statistics about attendees is probably OK since it wouldn't be personal data. If you are very conscientious about this, you could round all counts and use categories like "0-4 attendees, 5-9 attendees" for each facet, which makes it more difficult to make inferences about individuals. But the fundamental point is that all your data should relate to attendees as a whole, never to individuals. Regarding point 2 and 3, this is a question of legal basis. Since you gather names through informal conversations, I think that attendees would be weirded out if they learned that you kept detailed records on their attendance. So I think that you probably wouldn't have a legitimate interest here. However, being upfront with this and offering an opt-out could change this. On the aspect of keeping detailed notes on data from informal conversations, I'd like to point out H&M's EUR 35 million fine back in 2020 (summary on GDPRHub.eu). In a callcenter, managers used to have conversations with employees. These conversations touched on anything from vacation experiences to health problems, marriage problems, and religious beliefs. All of that is fine. What was not fine is that the managers went full Stasi and kept detailed notes about all of this on a shared drive and used that information for management decisions. This went on until a configuration error made those files accessible to all employees. This violated all the points in the basic compliance process outlined above: the records had no clear purpose, no suitable legal basis, contained way more data than necessary (and even Art 9 special categories of data like information on health or religious beliefs which have extra protection), did not have appropriate measures to prevent unauthorized access, and did not fulfill data subject rights like the Art 13 right to be informed. In case this non-profit is a church or religious organization that had its own comprehensive data protection rules before the GDPR came into force in 2018, those can continue to apply per Art 91. This could probably address some issues of legal basis, but cannot circumvent the GDPR's general principles. | These are only tangentially related to the GDPR A government entity processing data in accordance with a member state law is ipso facto in compliance with the GDPR. That’s because lawful government data processing is a legitimate reason for processing data under the GDPR. If Germany, for example, passes a law saying German police can record every phone call in Germany, then that would be a lawful basis for processing under the GDPR. There may be constitutional or other legal limitations on such a law but as far as the GDPR is concerned, they’re fine. | The university has a legal obligation to collect certain data from attendees, including employees an visitors. It has decided to keep these records in digital form, and offers a smartphone app as a convenience. The university has outsourced the data processing activity to a third party. This is perfectly legal under the GDPR, if that third party is contractually bound to only process the data as instructed, and not for their own purposes. Whereas the university acts as a data controller (Verantwortlicher), the third party would be a data processor (Auftragsverarbeiter). I have some doubts though whether an app or a website is indeed the solution that offers the best data protection, especially taking into account the GDPR's data minimization principle. Requiring updates when entering or leaving any room is potentially excessive. Given the sensitivity of the data, the university should have performed a data protection impact assessment to weigh the consequences of this measure. At least for employees, the measure would likely have to be approved by the union (Personalrat) as well. | Yes, you could do this be means of the EULA, provided you are not in the EU yourself. You only have to comply with the GDPR if you are offering a product or service to people that are in the EU. If you are making it clear that whatever you offer is not available to Europeans, you make your site exempt from the GDPR. | If the lawyer has legitimate concerns, his first port of call would be the ICO https://ico.org.uk/. Before the ICO will take his complaint further he'll have had write to you expressing his concerns and received a written response that presumably he is unhappy with, and wants to take the issue further. Most companies have a data compliance team who will have policies and procedures to log breaches like this and decide what course of action to take in response. Not every breach needs to be brought to the attention of the ICO, and they have a handy self assessment tool to see if you should report the breach. https://ico.org.uk/for-organisations/report-a-breach/ In your situation, I don't think this constitutes a serious breach which will require investigating. It's simply an admin error. If it is unlikely to pose a risk to any of the individuals they will say something like: You should keep an internal record of the breach as detailed in Article 33 (5) of the GDPR, including what happened, the effects of the breach and remedial actions taken. The definition of risk according to the ICO is: "This risk exists when the breach may lead to physical, material or non-material damage for the individuals whose data have been breached". So in this case I'd assume a simple apology (Bcc'd :) ) and a record of what happened, how it happened, and the action taken to prevent it happening again should suffice. | [I'm not so well-versed on US and Russian law, thus I will limit my answer to EU law.] Your specific use of a user identifier, as I understood from your question, can be classified as personal data, so in your case, the GDPR seems to apply. This means that you need to have a) legitimate purposes to process that personal data (e.g. crash reporting) and b) a legal justification for each purpose of processing: it could be based on consent or another legitimate purpose (inc. your own legitimate interests). Consent might not be the best option for you, but it's up to you to decide. In any case, you need to assess the risks to the data subjects (your users) before you decide. How likely is it that you will get breached, and what potential harm will that cause to your users? These are some guidelines; my recommendation is that you read the law and the guidelines by the Article 29 Working Group and European Data Protection Board, or hire some good experts on this. There is no easy answer, or one size fits all solution. The GDPR isn't so hard to understand or implement, but it does require some change in mindset. With the new law, processing personal data carries a higher risk of penalties, so you should do it only when it's absolutely necessary, and with respect to the rights of your users. |
Can a company withdraw their decision without compensation? A company allows eligible person to use their service at a discounted rate. Somebody would like to enjoy the discount but was not 100 percent sure about his eligibility. He then simply submitted the application, provided no fake documents, and the application was approved. The time was 2015. That person needs to renew his subscription annually, and the most recent (and successful) renewal occurred on March 2017. Before that the T&C has changed, of which the person is not aware. Additionally, the T&C applicable to the every-year subscription is the then-effective one at the time of renewal. On June 2017 the company decided to terminate the service to the person because they think he is not eligible. In the T&C the company does have the right to "verify the eligibility of the person and terminate the service to the ineligible at any time". However before the termination the person has made several successful payments (on a monthly basis), which are also accepted by the company. I may safely assume here that the company has approved the person's eligibility for this year's subscription? And since the most recent renewal there is no change in the T&C, and no change in the person's status since 2015, from which I would like to assume no reason for invalidation of his eligibility. Is my logic legally valid? Location: WA, United States | the company does have the right to "verify the eligibility of the person and terminate the service to the ineligible at any time" is pretty unambiguous. They have assessed your eligibility, determined you don't have one and have terminated the service. They are completely within their rights to do this. If you feel that they have assessed your eligibility wrongly then you can dispute their assessment - either through whatever dispute resolution is detailed in the contract or by going to court if the contract is silent. The fact that they previously assessed you as eligible (or didn't actually make an assessment) is irrelevant. | If you do not get anything from this "contract", and all it says is that you will pay someone a sum of money "on demand", it does not meet the basic requirements to form a contract, and in particular, there is no consideration being received by you. It would therefore not be a contract and would have zero legal force. If you do receive consideration, demonstrating that you signed the contract under duress will require specific legal advice, and you need a practicing lawyer in your jurisdiction. | For a contract (including ToS) to be valid, one of the things it must have is "legality of objects". That is, if the contract purports to require anything that is unlawful in the jurisdiction then (barring a severance clause) it is not a contract. In common law countries, the starting point is that people are free to contract for and about anything they like - a contract is simply a mechanism for exchanging value between the parties on whatever terms they wish. However, judges and legislatures have decided that there are some things you cannot trade and some terms that are unconscionable or against the public interest and these vary from jurisdiction to jurisdiction*. For example, a contract is not legal in any jurisdiction if its terms seek to exclude the intervention of the courts - this is against public policy. So for example, a binding arbitration clause requiring the parties to accept a private arbitrator's decision as final excludes the courts, yes? Well, in Australia, yes, such clauses if used in a contract between parties with different bargaining power (like a Telco and its customers) are invalid because they prevent the weaker party pursuing a class action. However, they are perfectly legal in the United States because the SCOTUS has determined that the customer can persue litigation after arbitration is finished so this doesn't impede the courts. These are essentially the same laws interpreted by the courts so that they have totally opposite effects. So this might lead you to think that you'll put one in - it'll be OK in the US and Australians will represent such a tiny share of your market that you don't care if I can't enforce my ToS there. Except, if your website is visible by Australians, you have just exposed yourself to a government fine of up to AUD 5,000,000 (say USD 3,000,000) per day for breach of Australian Consumer Law. As a general guide (which is very stereotypical), US jurisdictions are the most permissive in the rights they will allow their citizens to give up: the US attitude is that everyone is free to make the best deal they can. European jurisdictions are the least permissive in this regard: most European countries follow a more social welfare state model and the citizen needs protecting from themselves. Commonwealth countries tend to be more in the middle. | She could refer this to the Cyrpriot Commissioner for Personal Data Protection, but I would try contacting the company first and telling them to remove her Personal Data from the public website - or delete it completely. If they don't give a satisfactory response, mention the CPDP. This could lead to the data being removed within a few days, while an official complaint is likely to take longer. She may have grounds for legal action which would result in the company being compelled to take down the data (or to close the website), but if your friend is thinking in terms of compensation, what compensation would she seek? If she can demonstrate and quantify financial losses that occurred specifically because of this disclosure there might be a possibility, but I suspect that would be difficult to prove. | Point three should include "to the best of my knowledge and belief", or be modified to state that none of those "house or the adjacent shop" have informed the affiant of any such delivery, or delivered any such package to the affiant. It might add that the affiant had questioned such persons and they denied receiving such a delivery. The point here, of course, is to prove that the package was never properly delivered, no doubt in support of a claim on the delivery service. The ordinary assumption is that if a person in the "house or the adjacent shop" had accepted a package, it would normally have been given to the addressee at an early opportunity. | Your framing of the issue is basically wrong. There is an exemption, which varies from state to state, from unsecured creditors (but not creditors that take the goods as collateral) in bankruptcy and in debt collection outside of bankruptcy (not always the same exemption), for tangible personal property owned by the debtor which constitutes the debtor's tools of the trade, but that varies from state to state, is a creature of state statute (and the bankruptcy code), is not universal, and is usually limited in dollar amount. Moreover, the exemption only applies when the tradesman actually owns the tools of his trade which is customary in some professions, but not automatic. It is only the case when the tradesman buys his own tools. There is no generic v. non-generic distinction. In the software field, education and the public domain can always be accessed. But, intellectual property, that can be protected, that is developed for the employer, is usually work for hire and belong to the employer. This default rule is subject to the terms of the agreements between the parties entered into contractually. | No Let's consider a similar scenario. If you made a beverage which poisoned a number of people, would you be absolved of liability because you gave it away for free? Of course not. As there is no contract between you, they would have to bring an action against you in the tort of negligence or negligent misstatement OR under consumer protection law. To succeed at tort they would need to prove that you owed them a duty of care; from Donoghue v Stevenson "You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure ... persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation ...". Most cases will founder on your inability to foresee the use to which your software may be put. Consumer law is jurisdiction specific but they generally contain warranties that what you provide (gratis or otherwise) is fit for purpose, merchantable and that you do not make false and misleading statements. There is a chance that a case brought under this sort of law could succeed as you have not limited the purpose, specifically declared that it is not of merchantable quality and have (presumable) said what it does so that, if it doesn't do what you said, you have been misleading and deceptive. | The customer list is indeed a trade secret if the shop kept its customer list secret and has an advantage from having that customer list, while others don’t have it. And I would think that is the case, because a competitor laying their hands on the list could for example send special offers to the customers in the list. The question is whether your two hairdressers took that customer list and whether the store has reasonable evidence that they did. If customers find out where their favourite hairdresser moved to that’s no legal problem. Can’t understand why no attorney wants to take the case. To the attorney it doesn’t make a difference whether they took the list or not. If they took the list then his or her job is to end the case with the smallest possible amount of damages being paid. PS. Just read in the comments that there is an accusation of "intentional interference with economic relationship". I would want a lawyer who knows the difference between perfectly legal competition which includes trying to get customers to move their business, and "intentional interference with economic relationship". PS. Really make sure that these guys appear in court. With a lawyer. Not appearing means that if the plaintiff says "Judge, these guys did X, punish them!" and they are not there to say "We absolutely didn't do X, prove it if you can", the judge will assume that they did X. |
Is taking advantage of someone else's lack of knowledge considered a fraud? Say, Person A owns a rare postage stamp which is worth 2000€ according to the stamp collector community, but A doesn't know the worth. Person B sees that A has a rare stamp and offers to buy it for a fraction of its worth. B offers A 100€ for the stamp and A agrees happily. Later, A finds out the true value of the stamp and wants it back. A claims that B scammed them. Is B guilty of fraud, simply for not telling A how much the stamp is worth? | UK-based answer here: The crux of your question revolves around whether the buyer(B) had committed an illegal act by withholding information that would have prevented the seller(A) from selling the good at the price he did. The act that B would seemingly be guilty of would be fraudulent misrepresentation A misrepresentation is a false statement of fact or law which induces the representee to enter a contract. The important thing here is if there is a "false statement". In your scenario, there was no false statement made, let alone one which induced A into selling his stamp to B. So there is no fraudulent misrepresentation, or misrepresentation of any kind. Looking at the law of fraud: s3 Fraud Act 2006: A person commits fraud by failing to disclose information when => The defendant: failed to disclose information to another person when he was under a legal duty to disclose that information dishonestly intending, by that failure, to make a gain or cause a loss. With regards to the scenario you've given, no fraud would have been committed because the buyer was under no legal duty to disclose such information | This would not be "legal jeopardy" per-se, really the only remedy that Stack Exchange would have in a case like this would be to ban both accounts. It would be different if you caused SE some kind of monetary/reputation damages to the site itself. From SE's Acceptable Use Policy: Identity Theft and Privacy. Users that misleadingly appropriate the identity of another person are not permitted. It seems your described scheme would violate that term. But this isn't a legal problem, just an operational one. You aren't violating any law (unless there are local laws against this) by paying somebody to "be you" on SE. The most that this would earn you and your cohort would be a ban and probably removal of the contributions. | All fraud is criminal One of the types of fraud in the UK is “making a dishonest representation for your own advantage”. Lying to a prospective landlord in order to secure a lease is fraud. | No, this is not an acknowledgement of guilt or liability. It offers a "discount" some sort of reduction in price. This could be an offer of settlement without admission of liability, or even just advertising for repeat business (unlikely as that may seem). Without the rest of the communication, there is no way to tell. Unless there are specific admissions, this statement alone is not likely to have much significance in such a case. Edit: There is still not enough context to tell exactly what the sender of this communication wanted to accomplish with the offer of the discount, but since the OP now says "the party does not take the responsibility" this is not an admission of guilt, whatever else it is. It sounds like some sort of backdoor form of settlement offer without admission, but that is far from clear to me. My original answer is not significantly hanged here. | The issues you describe have existed with signatures from the beginning of their use. There exists a tradeoff between ease of use and reliability, both of forgery and of people falsely claiming forgery. Originally, the closest thing to a signature was the use of seals and signet rings. While relatively hard to forge, it only showed that the possessor of the object agreed. Signatures, especially in cursive font, were developed later. They were in some ways easier to forge(you didn't need to get access to a physical device), but more difficult in others(the seal symbols tended to be used on everything and various improvements in technology had been made), and harder to falsely claim forgery(because most people can't alter their handwriting well). You were affixing your name to the document, indicating that you agreed. Often, the signatures were required to backed up with the signatures of other people as witnesses. They didn't have to agree to the document, they just had to agree to testify that you signed of your own free will. Because witnesses, especially trustworthy and independent witnesses, are hard to come by, some places have dropped that requirement, such as checks and signing a aper receipt when using a credit card. But for some important documents, certain jurisdictions still require witnesses, including large transactions (a document relating to a car insurance payout I recently had required a witness to confirm my signature) and marriages. However, with electronic media, the point of a signature is more to indicate deliberate acceptance of terms, with verification of an individual being left to other processes (e.g. IP address, MAC address, linkage to a specific email account, etc.), so forgery is less of an issue. I have also seen "signatures" amount to checkboxes and "I agree" buttons. Generally, the higher the stakes and "more legal" the agreement, the more likely to these have been the "typed signatures" that you describe, but this seems to be decreasing in frequency, suggesting that its purpose was to stop gap a hole in legal acceptance by judges/courts/laws with regards to electronic communications. Addendum: It should also note that the replacement of seals by signatures is not universal; for instance in Japan, seals are still used over signatures in the majority of cases. | You should not keep them at all. Mark them clearly with whatever variant of "not living at this address"/"not known at this address" is accepted in your area, or with "return to sender, wrong address" and provide them to the courier agent or post office responsible for your area. Keeping mail that isn't yours opens you to offences like theft or conversion, or of interfering with the post system. Opening mail that isn't yours opens you to offences specifically defined by that action, as well as potential privacy breaches. Destroying mail that isn't yours opens you to offences of property damage. | In the US, the various crimes regarding mail theft, tampering are federal crimes, esp. 18 USC 1708 and 18 USC 1702. USPS has a web page about reporting mail theft here, and ultimately it would be prosecuted by the US Attorney's office. However, it is not guaranteed that the US Attorney will prosecute every case brought to his attention, instead, the case might be turned over to local authorities. Many (all?) states have their own laws covering mail theft, such as Cal. Pen 530.5(e), so it is possible that the prosecution (for the state crime) would be carried out by the state's district attorney. I do not know if there are any statistics on how frequently state and federal prosecutors decline to prosecute for throwing away or opening someone else's mail, compared to them prosecuting. The Dept. of Justice suggests accepting pleas to misdemeanors before Magistrate Judges over felony prosecutions, for less serious violations. Reporting the crime to the USPS Postal Inspector seems to be the standard first step. | In the UK it is an offence to cause a computer to gain unauthorised access to any program or data held in any computer (s1 Computer Misuse Act 1990). It seems likely that other European jurisdictions have similar laws. Certainly Germany does: Penal Code 202a data espionage (German text - English translation). (I mention Germany because the linked thread does.) It might constitute theft in the jurisdiction if the finder did not take reasonable steps to find the owner - which may include informing the police of the find. Depending on the jurisdiction it might count as 'treasure' or abandoned property such that the finder is obliged to inform the authorities (the jurisdiction has the presumption of ownership of abandoned or lost property - e.g. Scotland), which then decide what to do with it. Legally speaking it seems to me that, to declare it legal, we have to get over such hurdles. [edit] There seems to be some dispute in the comments that cryptocurrency is subject to any regulation, counts as property, is something of value or is something that is owned and can be stolen, such that the person in the questioner's scenario could be held to account under the law for his behaviour. Aren't they merely numbers? No - plainly they do have value because people trade them with currency and goods and services. The UK's tax authority, HMRC, "does not consider cryptoassets to be currency or money" but sees them as having economic value because "they can be 'turned to account' - for example, exchanging them for goods, services, fiat currency (that is money declared by a government to be legal tender) or other tokens". They are "a new type of intangible asset". Individuals are liable "to pay UK tax if they are a UK resident and carry out a transaction with their tokens which is subject to UK tax". They are liable for "Income Tax and National Insurance contributions on cryptoassets which they receive from their employer as a form of non-cash payment [or from] mining, transaction confirmation or airdrops." (HMRC cryptoassets for individuals) Are they property? Something that can be owned, something that can be dishonestly appropriate (i.e. stolen)? That's the interesting dispute. Recently, the High Court of England and Wales ruled in a bitcoin ransomware-related case that "for the purpose of granting an interim injunction in the form of an interim proprietary injunction ... crypto currencies are a form of property capable of being the subject of a proprietary injunction". In that judgment there is some discussion of the authorities for considering or deciding they are property. ([2019] EWHC 3556 (Comm)) read from para 50 if not the whole judgment. In at least two other cryptocurrency-related cases the High Court treated the cryptocurrency as property. Vorotyntseva v Money-4 Limited, trading as Nebeus.com [2018] EWHC 2598 (Ch) and Liam David Robertson v Persons Unknown 2019. There was also a suggestion in the comments that the police would not understand and would not be interested. But there are several jurisdictions where people have been investigated, arrested, prosecuted and convicted of crimes relating to cryptocurrencies. A simple internet search for bitcoin theft, fraud or money laundering will result in some reports. In any case their interest or lack of it is irrelevant to what the law may say. |
How can an allegation of NOT having an affair be a defamation? Yesterday, 3/27/18, it was reported that the porn actress Stormy Daniels sued President Trump's lawyer Mr. Cohen for defamation because he alleged that Stormy Daniels did not have an affair with Mr. Trump. If not, then how can they argue a defamation? Even if the allegation of the affair never having taken place is false, it is a lie which does not damage anyone's reputation (ie, it does not "defame" anyone). In fact, even if it is a lie, it seems like it is a lie which can only serve to improve someone's reputation. Is there any precedent or law which recognizes a claim of not having an affair to be defamatory? Is there any law or precedent to make a claim that someone lied publically (but not under-oath) a defamatory claim? Edit: this answer below shows that the claim of defamation stems from allegation that Stormy Daniels was called a liar rather than from the allegation that she did not have an affair. In a similar vein, hypothetically, if Mr. Cohen made a public statement that Stormy Daniels was lying about being or having been an adult movie actress, would that be defamatory? | Saying "they didn't have an affair", in isolation, would not be defamation. But we have to look at the context. Daniels had previously stated publicly that they did have an affair. So when Cohen said that it wasn't true, he was (claims Daniels) effectively calling her a liar. Calling someone a liar is potentially defamatory. You can read Daniels's complaint here. See paragraph 67: Both on its face, and because of the facts and circumstances known to persons who read or heard the statement, it was reasonably understood Mr. Cohen meant to convey that Ms. Clifford is a liar, someone who should not be trusted, and that her claims about her relationship with Mr. Trump is 'something [that] isn't true.' Mr. Cohen's statement exposed Mr. [sic] Clifford to hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her. As to whether calling someone a liar is defamatory, there's a long article on the subject here. There are at least some cases where courts have held that it is. Gutterman, Roy S. "Liar! Liar? The Defamatory Impact of 'Liar' in the Modern World." Fordham Intellectual Property, Media and Entertainment Law Journal 27 (2) 253-286, 2017. | In the united-states, attorneys are almost never placed under oath. Their statements -- whether they are assertions of fact or legal arguments -- are not evidence, and they are not subject to cross examination. There are limited circumstances in which an attorney would be competent to present actual evidence. In such cases, the attorney would be sworn in as a witness and subject to cross examination, but the attorney would likely also be disqualified from acting as an attorney in such a situation under Model Rule 3.7. | Your question is essentially this: consider a defamation lawsuit in which A alleges that B falsely stated that A did X (and it is not contested that B made the statement) also consider that B has done X in the past is it of any relevance to A's defamation suit that B has done X in the past canada Evidence must be relevant to a live, material issue In order for evidence to be admissible it must be "relevant to a live, material issue in the case" (this is from a dissent, but there is no disagreement about this point). Stage 1: Did B make a defamatory statement about A that was published - no relevance to this issue Defamation is prima facie proven if B's statement was published and if it tended to lower the reputation of A. The fact that B has done X in the past is irrelevant to this aspect of the analysis, especially when the defendant is not alleging that they did not say "A did X." Stage 2: Defences - there is a very narrow path for relevance on this issue Once defamation is prima facie proven, the burden flips to the defendant to establish a defence. Of all the possible defences, the only one in which I could see B having done X in the past being relevant is the defence of fair comment: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts? (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. The fact the B has done X in the past could be relevant to this defence if B were to use that familiarity with the activity X as part of the commentary on why they believe that A has done X. It could also be relevant (not on its own, but along with much more context) for an allegation of malice on B's part. Conclusion: Evidence that B did X in the past would likely not be relevant I see it very unlikely that B having done X in the past would be relevant. It would likely be treated as a collateral issue, unless B's credibility somehow became absolutely central to the litigation and if the judge was convinced that such acts relate to credibility. On the facts as described, and even for a fair comment defence, I don't see that being the case. | The legal definition of the most straightforward form of fraud (a direct fraudulent misrepresentation) is that the guilt person: Says something that is not true about a presently existing material fact which is not an opinion; With the intent that someone else rely upon that statement to their detriment; They do indeed rely upon that statement; Their reliance is justifiable; and Their justifiable reliance causes them damages. A promise broken is not fraud unless it was made with a present intent not to fulfill the promise. Generally, a statement about the future cannot be a basis for fraud unless it clearly implies something about a presently existing material fact that is not true. In lieu of a fraudulent misrepresentation, there can also be fraudulent concealment which involves an omission of a presently existing material fact under circumstances when there was a duty to disclose it, with an intent to mislead that does justifiably mislead and causes damages. Lots of lies don't qualify as actionable fraud including: Statements about immaterial facts. Statements of opinion (e.g. the house is worth $300,000) or about one's feelings. Promises about the future that you intend to keep and then don't. Predictions that don't pan out. Statements made believing, inaccurately that they are true. Ambiguous statements that are taken the wrong way and do mislead but weren't intended to mislead. Statements that weren't intended to be taken seriously or relied upon. Lies that aren't relied upon or that a reasonable person wouldn't have relied upon. Lies that don't cause economic harm, including lies that are disavowed before they cause economic harm. This includes lies told with the belief that they are in the best interests of a person who could be harmed by the truth (e.g. a child or a mentally unstable person or some who is so fragile that the truth could trigger physical harm). Lies that are relied upon an unintended recipient (e.g. you lie to a prospective business partner at dinner about something related to a business deal and someone who eavesdrops on the conversation relies upon it). Some lies told on behalf of and solely in the name of someone else (e.g. a false statement of a prospectus for an investment published solely in the name of the company offering the investment without attribution of who wrote it). Lies that are mandated by another greater legal duty (e.g. lies by a spy, a diplomat, a cop trying to catch a criminal - but not a prosecuting attorney, by a soldier). | tl;dr No, N.Y. Times v. Sullivan established the actual malice standard in the context of defamation. It is not illegal for a public figure to claim the sun revolves around the Earth unless some other law intervenes (maybe something fact-dependant like fraud or lying under oath). Background Here's an example of how N.Y. Times would work in California. Under California law, slander, along with libel, are the defamation torts. See Cal. Civ. Code. § 44. The First Amendment limits California’s slander law by requiring public figures prove actual malice when they want to sue someone for defaming them. Khawar v. Globe Int’l, 19 Cal. 4th 254, 262 (1998). (The Supreme Court got involved in N.Y. Times in the first place because of the First Amendment implications on the States' defamation laws.) In turn, "actual malice" means a statement was made "with knowledge that it was false or with reckless disregard of whether it was false." Khawar, 19 Cal. 4th at 275 (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). As to knowledge, California courts consider only actual—not constructive—knowledge. Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387, 398 (2001). In turn, actual knowledge "consists in express information of fact." I.E. Assoc. v. Safeco Title Ins. Co., 39 Cal. 3d 281, 285 (1985). This is a bunch of lawyer-speak, but it basically sets up a pretty high bar for the public figure who is trying to prove defamation. Again, N.Y. Times doesn't have to do with barring public figures from making non-defamatory false statements. You'd have to look to other areas of law about false representations or lying under oath for a claim against the politician. california | Not disclosing transgender identity is not a crime of any kind, not rape, not fraud, not anything else. There is really no qualification to this statement. There is pretty much no plausible scenario in which concealing a transgender identity leads to liability for fraud of any kind and this never constitutes rape by deception. What is a crime and is regularly prosecuted, is retaliating against the person or property of someone who they discover is transgender while having sex. Incidents like these happen with some frequency and they alway create criminal liability for the person retaliating and never for the transgender individual in the cases where the transgender individual isn't killed (dozens of time each year in the U.S. the transgender individual is killed in a situation like this one). | As far as I know, every jurisdiction in America limits perjury to cases of lying under oath. Because it seems unlikely that the driver would be under oath at this point, you would probably lack probable cause to make an arrest. At the same time, many states have separate laws addressing the making of false reports, lying to an officer, etc. I'd imagine most jurisdictions would have a law supporting an arrest for lying at the scene, even if not for perjury. | The MGM movie Rasputin and the Empress implied that the real person Princess Irina Yusupov, as represented by Princess Natasha in the film, was raped by Rasputin. She sued for defamation, the jury agreed, and MGM paid out plus edited the scene out of the film. Subsequently, the "everybody is made up" disclaimer has been standard albeit not universal, especially when events are similar to reality. Star Trek is clearly not intended to be real, so "false claims" would not be defamation. But when a movie could reasonably be taken to be a representation of facts, it becomes important to make clear that it is not a representation of facts. Otherwise, a false claim that Mr. X did something bad could be the basis for a defamation lawsuit. It is not bulletproof protection against a lawsuit. The movie The Idolmaker was apparently too realistic, and Fabian Forte filed a big lawsuit, and settled out of court (so we don't know if the disclaimer would have been deemed by the court to be legally empty). |
Earliest effective American Law What is the earliest American federal law that could technically be used to prosecute someone today, that has not been overridden by another law? For the purposes of this question, we are talking about only federal laws, not the Declaration of Independence, or the Constitution or its amendments, but actual bills ratified by congress. | First law An act to regulate the time and manner of administering certain oaths First law containing a crime via Wikipedia: The renewal of the Northwest Ordinance, which authorized the executive to adopt state law within the Northwest Territory i.e. An Act to provide for the Government of the Territory North-west of the river Ohio (1 Stat. 50). However, as best I can see this gives the Governor of the territory and, initially, judges (later a legislature) the authority to make laws, without specifying any crimes. First solely criminal law An Act for the Punishment of Certain Crimes Against the United States (1 Stat. 112) First law containing a crime, still in effect Possibly the above. Certainly, this article on U.S. Law Enforcement Abroad: The Constitution and International Law describes (in reference 11) "18 U.S.C. §2381 (1982), adopted originally as Act of Apr. 30, 1790, ch. IX, 1 Stat. 112." The wording of 18 U.S. Code § 2381 does seem to closely mirror that of the 1790 Act: Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States. versus That if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, and shall be thereof convicted, on confession in open court or on the testimony of two witnesses to the same overt act of the treason whereof he or they shall stand indicted, such person or persons shall be adjudged guilty of treason against the United States, and shall suffer death. | The double jeopardy clause would prevent you from being retried by the government that tried you for murder (probably a U.S. state). But, you could be tried for fraud and obstruction of justice at the state level, and you could be tried for murder if an appropriate federal offense were located, at the federal level. Often conspiracy to deprive someone of their civil rights is used as a federal offense when there is a state level acquittal, and it isn't impossible to imagine that happening in this case as the victim had a right to the protection of the laws, and the state had a right to enforce the criminal laws, which was deprived in a manner that could be called "under color of state law.' | While the point made by user6726 is not wrong with respect to this particular statute, it doesn't address a more basic point about how the supremacy clause works. Federal criminal laws govern punishments for federal crimes in the federal criminal justice system. Federal prosecutors bringing federal criminal charges against criminal defendants in the federal criminal justice system can and do secure death penalty sentences against criminal defendants in states where there is no state death penalty. One recent case where that happened was the Boston Marathon bombing case where a defendant was sentenced to death in federal court for the crime for violation of a federal criminal statute, despite the fact that Massachusetts has no death penalty of its own. This is not a supremacy clause issue. No state law had to be changed or invalidated because of the existence of the federal law. States law governs how the state criminal justice system works, not the federal criminal justice system. When we say that a state has abolished the death penalty, we mean that it has abolished it in the state criminal justice system. This doesn't absolutely foreclose the possibility that the death penalty will be imposed in that state on federal charges, although it does make it far less likely that the death penalty will be imposed. Partially, this is because "blue collar" crime is handled by the states. Partially, this is because out of comity and a concern that juries in states without a death penalty are less likely to vote for a capital sentence, federal prosecutors are less likely to seek the death penalty in a state without capital punishment than in a state with capital punishment. For example, there are 2,902 people on death row as of 2016, in the U.S. Almost 98% of death penalty convictions that have not yet been carried out were obtained in state courts. Only, 62 involve civilian death penalties imposed in federal courts (mostly in states that have the death penalty) and another 6 involve death penalties imposed in military courts (mostly in states that allow the death penalty or abroad). All of the other cases arose in state courts. | Such a law would be constitutional The US Congress could decide to require VPN providers to register the IPs that they provide to VPN customers. The use of such techniques would almost surely be considered "interstate or foreign commerce" and so Congress would have power under the Commerce Clause of the constitution to legislate concerning it. There would clearly be a rational basis for such a law -- the question outlines such a basis. This is not an area subject to strict scrutiny. None of the previously established limits on the commerce power (and there are few) would seem to apply. State laws on this topic would probably be preempted by the dormant commerce clause if Congress does not act, and clearly preempted if Congress does act, unless Congress explicitly permits concurrent legislation. Whether Congress should act on this matter is a policy question not on topic on Law.se. Whether Congress will act is speculation. I can only say that I am not aware of any widespread demand for such action, or any proposed bills, on the topic. However, there is US caselaw to the effect that anonymous speech (or other communication) is protected by the First Amendment , and that laws effectively banning anonymous speech are not acceptable. But there are other ways of anonymizing online speech, so that would not seem to provide sufficient grounds to overturn such a law. | "Seditious libel" has happened before, but not in the US. This comes up in NY Times v. Sullivan, which notes that For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. This Volokh article gives various citations showing that a government entity cannot sue for libel. | You don't specify a jurisdiction but taking the US as an example, yes you could be charged with 2nd Degree Murder - you intended to harm them but not specifically to kill them: A second situation that constitutes second-degree murder is where the perpetrator intends only to cause serious bodily harm but knows that death could result from the act. For example, in the situation above, instead of shooting Bill, Adam grabs a shovel and whacks Bill in the head with all his strength. While Adam didn't specifically intend to kill Bill when he hit him, he did intend to strike him with the shovel knowing that such a blow to the head carried with it a distinct possibility of death. Adam killing Bill in this way would be classified as murder in the second degree. In English law you'd be facing charges for Voluntary Manslaughter | In Egbert v. Boule, 596 U.S. ___ (2022), the Supreme Court held that "there is no Bivens action for First Amendment retaliation." The Court was unanimous on this point. This means that right now, there is no way to sue for a damages remedy for First Amendment retaliation by federal officials. The majority said that "Congress, not the courts, is better suited to authorize such a damages remedy." | The general rule, in US courts, is that a person (or organization) can only sue if that person has actually been harmed in some way by the actions of the person or entity to be sued. This is called having standing. In some cases a law specifically grants standing more widely than the usual rule would. For example, some state elections laws grant standing to any voter to challenge certain kinds of procedural violations. In some countries there are special courts in which governmental actions (or inaction) alleged to be in violation of law can be challenged. In the US there is no such special court, such challenges are brought, if at all, in the form of ordinary lawsuits brought by individuals, groups, or organizations. Sometimes a person who has actually been injured by a governmental action must be found in order to mount a legal challenge to that action. There are other mechanisms than lawsuits which may be used to force compliance with law. An official who is acting improperly may be impeached, convicted, and removed from office. And non-compliance may be politically unpopular, and lead to a change of administration or to a legislator not being re-elected. But of course neither of those remedies always works. In some cases one part or agency of the government can sue another part or a specific official. The law may explicitly provide for this, or a court may declare such a suit to be permitted. In some cases there is apparently no way to force a legal settlement of a dispute. For example, the US Federal constitution has an "emoluments clause" which essentially says that the President shall not accept payments from foreign rulers or governments. It was apparently intended as a sort of anti-bribery provision. No US court has ever enforced it, and recent cases seem to suggest that impeachment is the only way to enforce it. (It seems that this is incorrect, and a better example is needed.) The current US system is imperfect (as is every other system I know of, although in different ways). The reason for the standing rule is that if everyone who felt that something wrong was being done, even if not to him or her personally, could sue, the courts would be totality overrun with such suits, and much of government would have no time to do anything but to defend such suits. That is because almost every governmental action offends or angers someone, even if it does not do that person measurable harm. Limiting suits to cases where the plaintiff has standing is a key method of keeping the system in check. The US doe3s not have any overriding monitor agency which can sue for any improper government action. If it did, who would keep that agency in its proper bounds? |
Is placing the burden of proof on the accused illegal? The specific situation I'm thinking of is ticket inspectors, but it could apply to other situations. The ticket inspectors assume you are fare evading without evidence (no presumption of innocence) They ask to see your ticket (violent communication, implying you're lying) If you refuse, you can be arrested and escorted off the train even though your ticket is valid (actual physical violence), and possibly issued a fine, not for travelling without a valid ticket, but for failing to produce a valid ticket when asked As far as I know, the police must have reasonable suspicion before interacting with you, and ticket inspectors are also called "transit police". I'm not sure if they're actual police or not. My issue is not about fare evasion. It is about treating the innocent as if they were guilty and placing the burden of proof on the accused instead of the accuser. For what it's worth, I always travel with a valid ticket and I don't like fare evasion. I also find it offensive being falsely accused on an almost daily basis, even if that's not how they see it. Transit laws notwithstanding, is this behaviour in any way illegal? | From a US perspective, in a word, "no". Firstly, "presumption of innocence" is in a trial, not in police interactions. Being arrested does not violate the presumption of innocence. Police do not need any reason to interact with you or ask you questions. Police can arrest you if they have probable cause to suspect you have committed a crime, but this is not always necessary. More on this later(in the fourth section). Secondly, I wouldn't describe requesting to see your ticket, or any document as a "violent communication", in general. It may be rude or insulting, but not violent. (Also "violent communication" is not a legal term. The closest legal terms, verbal assault and threatening communication, are also not this.) More over, there is no indication of am implication of lying in this request. Thirdly, there are many situations in which possessing a document or credential is not sufficient; one must legally display or present them upon request. For example, multiple occupational licenses such as liquor licenses and barber/cosmetology licenses require that the licenses be prominently displayed; whereas, in California at least, a vehicle driver on a public road must not only possess their driver's license and proof of insurance, they must produce them upon the request of any law enforcement officer (Source: https://www.dmv.ca.gov/portal/dmv/detail/pubs/brochures/fast_facts/ffvr18). Fourthly, there are situations in which you can be legally searched and questioned without reasonable suspicion. Examples of this include boarder searches and sobriety checkpoints. Sources: (US Supreme Court rulings): https://en.wikipedia.org/wiki/United_States_v._Martinez-Fuerte; https://en.wikipedia.org/wiki/Michigan_Department_of_State_Police_v._Sitz A note on sources: bdb484 and I have opposing court case sources. My sources have binding precedent over all courts in the US, save the US Supreme Court, whereas theirs don't have any binding precedent, but are more directly on-topic. | The defence sees the prosecution evidence; witnesses don’t From context, it appears that Ms. DeCoutere was a prosecution witness, not the defendant. As such, she would not be privy to the evidence that either the prosecution or defence had or intended to present. No doubt both the prosecution and the defence would have known about the photograph and, I would imagine, it was introduced by the defence precisely because it contradicted the witness’ testimony. Further, revealing such evidence to her by either side would be misconduct - witnesses are supposed to recount the facts as they recall them without prompting or aide memoirs (police are an exception - they are allowed to refer to their own notebooks). | A police officer can lie, and lying does not render a statement inadmissible. But there is a separate area of law regarding self-incrimination and the right to a lawyer. The basic principle is that a person can always assert their 5th Amendment rights, whether or not they are under arrest. When a person is under arrest and has asserted their right to an attorney, questioning must stop and anything that results from further questions is inadmissible. There is no single factor that distinguishes ordering asking questions from custodial interrogation. For example if you have been dragged by officers to the police station and held in a locked room for hours in the middle of night, one would reasonably believe that you were taken into custody, and interrogation must stop once you request a lawyer. In Oregon v. Mathiason, 429 U.S. 492, police contacted the defendant whom they suspected was involved in a burglary and they invite him to chat at the station. They lie and say they found his fingerprints at the scene (they did not). He then confesses, they read him his rights, and he confesses again. The confession is admissible, because this was not a custodial interrogation. The relevant question is whether "a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave". | Are police required to contact a real lawyer if you ask? give opinions from a number of lawyers and police in different jurisdictions. The basic consensus is that in most jurisdictions, such behavior will get the case thrown out of court and often get the police officer who tried this fired. HOWEVER there was a case where this was tried and while the case was thrown out on appeal, it was not as simple as the postings in the above article may have made it appear. This story shows a case where the Tennessee police actually did this. While the lower court allowed it because the defendant was "gullible", the appeals court rejected this argument. [T]he conduct of the law enforcement officers in this case, and in particular Detective Henry, is so egregious that it simply cannot go unchecked. That Detective Henry would illegally pose as an attorney and arrange the circumstances of the defendant’s case to make it appear as though he had successfully undertaken legal representation of the defendant is abhorrent. That the detective would specifically instruct the defendant not to communicate the relationship to his appointed counsel, in what we can only assume was an effort to enlarge the time for the detective to gain incriminating information from the defendant, renders completely reprehensible the state action in this case. Given the unconscionable behavior of the state actors in this case and the fact that the defendant was essentially prevented from proving prejudice through no fault of his own, we have no trouble concluding that the only appropriate remedy in this case is the dismissal of all the indictments. | Just below the section you quoted it says: (3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section. There is no stated provision for the case you mention. I suspect that the law would apply. Whether the authorities would choose to prosecute in such a case is a very different question. There might be caselaw of this subject. I wouldn't know. If this is more than hypothetical, i would urge consulting a lawyer with local knowledge of criminal practice. | From the news article alone, one cannot tell just what is meant by "possible" here. My guess is that the passenger claimed that the event happened, the railway has not conceded that it did, but would rather settle than pay the costs of defending the case, and take the risk of a large verdict, and the risk of negative publicity. So "possibly" would mean "not proved in court". | Basically, it is up to the court. The relevant law is the Police and Criminal Evidence Act (PACE). You don't give much in the way of specifics, but it sounds like you confessed something to the police at the side of the road immediately after the accident, and now wish to dispute that confession. If you are taken to court and the police want to introduce your confession as evidence then you (through your lawyer) can ask the court to rule it out. You may be able to do so on a number of grounds. Was the confession properly recorded at the time? Were you treated in an oppressive manner, such that you felt you had to say what the police wanted to hear. Did you think you might get more favourable treatment if you said what the police wanted? For instance, did you think you might be allowed to go home once they were satisfied? Were you given a proper rest, or were you in a mental state that might cause you to say things without understanding the consequences (it sounds like this would be your main argument, but consider the others too). [Edit] If you needed medical treatment that would also be relevant. Were you properly cautioned (that speech beginning "You do not have to say anything...") before the police asked you questions. If you think you may be facing criminal charges then you should get yourself a lawyer sooner rather than later. A lawyer will know all about this and be able to navigate the relevant legal processes on your behalf. A bit of background: back in the 1970s the police frequently attributed incriminating statements to suspects when arrested, such as "Its a fair cop, guv", or "Who ratted on us?". The rules in PACE were made to stop such "verballing". | I suspect that you would not be convicted in the present case, because the jury would be sympathetic to the plight of the person being dragged out and unsympathetic to the behavior of the draggers. However, we should set aside the emotional elements of a jury trial and focus on legal principles. The basic question is whether a person has the right to use force to defend against an unlawful battery: "a person is privileged to use such force as reasonably appears necessary to defend him or herself against an apparent threat of unlawful and immediate violence from another". This right to defense also extends to defense of others. But it has to appear to be to unlawful, which is to say, you have to reasonably believe that the force used against the victim is unlawful. If a couple of thugs try to drag a person away, then an observer probably has a reasonable belief that this is an unlawful battery. But if a couple of police officers are observed dragging a person away (arresting him), apparently acting officially, the force used (up to a point) is apparently lawful and would not constitute battery of the victim. For defensive force against police to be lawful, the forced used by the police must be excessive. The outcome then depends on what a reasonable person would conclude (this is where the jury or judge makes a rather subjective decision). If a reasonable person would conclude that the assailants are acting lawfully in arresting the person, then a higher bar must be clear to justifiably use force in defense of others. Wearing a jacket that says "Police" favors the "appears lawful" side (though if you happened to know for a fact that the person wearing the jacket is not a police officer, then the "police exception" would not be applicable). In the relevant case, the facts point to the appearance of a lawful arrest (even if were to turn out to be judged unlawful). In the case that this is an apparent arrest, it would have to be the case that a reasonable person would find the force used to be excessive. Generally speaking, force used by officers is held to be reasonable, except in some cases where it is not. See for example the matter of Eric Garner, where the officers involved were not indicted. On the third hand, in this case, it might matter what the actual legal status of the "officers" is (they are not Chicago police). |
Working in high school while concurrently enrolled I'm a homeschooled high-school sophomore, concurrently enrolled at a local community college taking advanced math classes. My Calculus instructor asked me to take a job as a supplemental instruction next year for his Calc 1 class, not knowing that I was in high-school. When I told him that I was still only 15 (I would be 16 by the time the job actually started), he said that he would try to figure out a way to make it work still, but after talking to the top person in the hiring chain, was told that I could not take the job before graduating high-school. When I asked if it was a school regulation, he said that it was California state law that prohibited me from taking the job. This seems strange to me, because according to all the research that I've done, if I can get a working permit, I should be allowed to work even during school hours up to 4 hours a day once I am 16. It doesn't make sense that I would have to have a high-school diploma before I can get a job. So my question is, is there some specific restriction that applies because I am concurrently enrolled, or is their simply some misunderstanding either on my part or on the part of the school? If I get a chance to talk to someone on the hiring chain, what should I tell them, I don't want to act like I know more about employment law than them, but it seems like what they told my instructor does not fit with everything I've read. | If you are truely home-schooled, and your parents (or teacher) has not formed some kind of private school in which to teach you, then you cannot obtain a work-permit. In the State of California, the school or private school satellite program issues work permits for the students. Issuing work permits is dependent on meeting certain school criteria (grades, academic record, attendance, whatever the school wants). California has decided that parents may not issue work permits for home schooled kids. You can read more about it on The HomeSchool Association of California's website along with the California Department of Education. The Employer can also decide not to hire minors (there is quite a bit of record-keeping, possible fines, and lengthy record-retention policies). You may be able to work out something to be a tutor unaffiliated with the school, which would fall under the self-employment exemption for a work permit. | The law upheld by the decision is a New York law, and thus only applies in the state of New York. Its current text reads in relevant part: No person shall be employed or authorized to teach in the public schools of the state who is... Not a citizen. The provisions of this subdivision shall not apply, however, to an alien teacher now or hereafter employed, provided such teacher shall make due application to become a citizen and thereafter within the time prescribed by law shall become a citizen. The provisions of this subdivision shall not apply, after July first, nineteen hundred sixty-seven, to an alien teacher employed pursuant to regulations adopted by the commissioner of education permitting such employment. The citizenship requirements of this subdivision shall not apply to an alien teacher now or hereafter employed whose immigration status is that of a lawful permanent resident of the United States and who would otherwise be eligible to serve as a teacher, or to apply for or receive permanent certification as a teacher, but for the foregoing requirements of this subdivision. The last sentence of that will no longer be effective starting Nov 30 2022. So, this law only says they are prohibited in New York public schools. And even then, they are allowed if they are applying to be a citizen, if they are hired pursuant to regulations adopted by the commissioner of education, or (until 2022) if they are a lawful permanent resident of the US. Other states may have other laws, of course. | The general rule is that the author of the software owns the copyright, so that would be the student. This is regardless of whether the student writes the code for fun, or for a thesis. If a student is hired to write that code, then it kind of depends on the university rules, and who hires the student. In the case of a "work for hire", the employer owns the copyright. However, it is non-trivial to determine whether that principle is applicable in the case of a student hired by the university. In part, it depends on which country this is in because work for hire laws are not exactly the same everywhere, and in part it depends on the details of the employment my a university. In a typical US institution RA appointment, it would come down to university policy – some universities declare that copyright in all student-written software is retained by the student. You would need to look for something resembling an "IP Policy" – here is a sample, note that such policies are subject to revision. | Yes: It is legal to deny someone a job as a priest because he is an atheist. Churches are allowed to discriminate in employment based upon religion. See, for example, the EEOC compliance manual. This says, in the pertinent part (citations included after the quoted material): C. Exceptions Religious Organizations Under Title VII, religious organizations are permitted to give employment preference to members of their own religion.[42] The exception applies only to those institutions whose “purpose and character are primarily religious.”[43] That determination is to be based on “[a]ll significant religious and secular characteristics.”[44] Although no one factor is dispositive, significant factors to consider that would indicate whether an entity is religious include: Do its articles of incorporation state a religious purpose? Are its day-to-day operations religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion)? Is it not-for-profit? Is it affiliated with or supported by a church or other religious organization? [45] This exception is not limited to religious activities of the organization.[46] However, it only allows religious organizations to prefer to employ individuals who share their religion.[47] The exception does not allow religious organizations otherwise to discriminate in employment on protected bases other than religion, such as race, color, national origin, sex, age, or disability.[48] Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races. Similarly, a religious organization is not permitted to deny fringe benefits to married women but not to married men by asserting a religiously based view that only men can be the head of a household. EXAMPLE 7 Sex Discrimination Not Excused Justina works at Tots Day Care Center. Tots is run by a religious organization that believes that, while women may work outside of the home if they are single or have their husband’s permission, men should be the heads of their households and the primary providers for their families. Believing that men shoulder a greater financial responsibility than women, the organization pays female teachers less than male teachers. The organization’s practice of unequal pay based on sex constitutes unlawful discrimination.[49] Ministerial Exception Courts have held, based on First Amendment constitutional considerations, that clergy members cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act, because “[t]he relationship between an organized church and its ministers is its lifeblood.”[50] This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority.[51] Thus, courts will not ordinarily consider whether a church’s employment decision concerning one of its ministers was based on discriminatory grounds, although some courts have allowed ministers to bring sexual harassment claims.[52] The ministerial exception applies only to those employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction.[53] The exception is not limited to ordained clergy,[54] and has been applied by courts to others involved in clergy-like roles who conduct services or provide pastoral counseling. However, the exception does not necessarily apply to everyone with a title typically conferred upon clergy (e.g., minister).[55] In short, in each case it is necessary to make a factual determination of whether the function of the position is one to which the exception applies. The relevant footnotes: [42] Section 702(a) of Title VII, 42 U.S.C. § 2000e-1(a), provides: This subchapter shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Section 703(e)(2) of Title VII, 42 U.S.C. § 2000e-2(e)(2) provides: it shall not be an unlawful employment practice for a school, college, university, or educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion. While Congress did not include a definition of the § 702(a) term “religious corporation” in Title VII, at least one judge has argued that the legislative history indicates that Congress intended “the § 703(e)(2) exemption to require a lesser degree of association between an entity and a religious sect than what would be required under § 702(a).” See LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 237 (3d Cir. 2007) (Rendell, J., dissenting). Executive Order 13279, Equal Protection of the Laws for Faith-Based and Community Organizations, issued on December 12, 2002, provides that certain faith-based organizations that provide social programs can deliver those services and make hiring decisions on the basis of their religious beliefs even if they receive federal funding. See 67 Fed. Reg. 77,141 (12/16/02). The Guidance to Faith-Based and Community Organizations on Partnering with the Federal Government, http://www.whitehouse.gov/government/fbci/guidance_document_01-06.pdf (last visited July 2, 2008), issued by the White House Office of Faith Based and Community Initiatives, explains that while religious organizations that receive federal funds to provide social services may choose to hire persons of the same religion, they are also subject to federal, state, and local employment and anti-discrimination laws, such as Title VII. [43] Townley, 859 F.2d at 618; accord Hall v. Baptist Mem. Health Care Corp., 215 F.3d 618, 624-25 (6th Cir. 2000) (college of health sciences qualified as a religious institution under Title VII because it was an affiliated institution of a church-affiliated hospital, had direct relationship with the Baptist church, and the college atmosphere was permeated with religious overtones). [44] Townley, 859 F.2d at 618; see also Killinger v. Samford Univ., 113 F.3d 196 (11th Cir. 1997) (Baptist university was “religious educational institution” where largest single source of funding was state Baptist Convention, all university trustees were Baptists, university reported financially to Convention and to Baptist State Board of Missions, university was member of Association of Baptist Colleges and Schools, university charter designated its chief purpose as “the promotion of the Christian Religion throughout the world by maintaining and operating institutions dedicated to the development of Christian character in high scholastic standing,” and both Internal Revenue Service (IRS) and Department of Education recognized university as religious educational institution). [45] Townley, 859 F.2d at 619 (manufacturer of mining equipment, whose owners asserted that they made a covenant with God that their business “would be a Christian, faith‑operated business,” is not a religious organization because it is for profit; it produces mining equipment, a secular product; it is not affiliated with or supported by a church; and its articles of incorporation do not mention any religious purpose). Cf. EEOC v. Kamehameha Sch./Bishop Estate, 990 F.2d 458, 461 (9th Cir. 1993) (non-profit school not “religious” for Title VII purposes where ownership and affiliation, purpose, faculty, student body, student activities, and curriculum of the schools are either essentially secular, or neutral as far as religion is concerned). [46] See Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (a nonprofit church-run business does not violate Title VII if it refuses to hire anyone other than members of its own religion, even for enterprises or jobs that are not religious in nature). [47] Killinger, 113 F.3d at 200 (School of Divinity need not employ professor who did not adhere to the theology advanced by its leadership); Tirpanlis v. Unification Theological Seminary, 2001 WL 64739 (S.D.N.Y. Jan. 24, 2001) (seminary operated by Unification Church cannot be sued for religious discrimination by Greek Orthodox employee who was allegedly terminated for refusing to accept the teachings of the Unification Church). [48] Ziv v. Valley Beth Shalom, 156 F.3d 1242 (Table), 1998 WL 482832 (9th Cir. Aug. 11, 1998) (unpublished) (religious organization can be held liable for retaliation and national origin discrimination); DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) (religious institutions may not engage in age discrimination). [49] EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986) (religious school violated Title VII and the Equal Pay Act when it provided “head of household” health insurance benefits only to single persons and married men). [50] McClure v. Salvation Army, 460 F.2d 553, 558-60 (5th Cir. 1972); see also Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir. 2007) (applying ministerial exception to bar claim by resident in hospital’s pastoral care program who alleged disability discrimination); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) (applying ministerial exception to bar age discrimination claim brought by Catholic Diocese music director who was terminated following a dispute with the bishop’s assistant regarding what to play during the Easter Mass); Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006) (applying ministerial exception to bar age discrimination claim); Combs v. Central Texas Annual Conf. of United Methodist Church, 173 F.3d 343 (5th Cir. 1999) (barring claim because court could not determine whether an employment decision concerning a minister was based on legitimate or illegitimate grounds without entering the constitutionally impermissible realm of internal church management); EEOC v. Catholic Univ. of America, 83 F.3d 455 (D.C. Cir. 1996) (ministerial exception barred Title VII sex discrimination claim brought by tenured member of Catholic University’s department of religious canon law); DeMarco v. Holy Cross High School, 4 F.3d 166 (2d Cir. 1993) (ministerial exception inapplicable to parochial school teacher’s age discrimination claim because employer’s contention that teacher was terminated specifically for failing to attend Mass and to lead his students in prayers could be evaluated without risk of excessive entanglement between government and religious institution); Guianan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849 (S.D. Ind. 1998) (ministerial exception inapplicable to parochial school teacher’s age discrimination claim, even though teacher taught at least one class in religion per term, and organized one worship service per month, since vast majority of teacher’s duties involved teaching math, science, and other secular courses). [51] Rayburn v. Gen. Conference of Seventh‑Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985). [52] Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008) (Title VII race discrimination claim by African-American Catholic priest challenging denial of promotion and subsequent termination was barred by the ministerial exception); Petruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006) (ministerial exception bars Title VII sex discrimination claim by female Catholic chaplain against school, alleging that she was forced out as chaplain after she advocated on behalf of alleged victims of sexual harassment and spoke out against the school’s president regarding alleged sexual harassment and discrimination against female employees); Werft v. Desert Southwest Annual Conf. of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004) (ministerial exception barred minister’s claim against church for failure to accommodate his disabilities). However, some courts have ruled that the ministerial exception does not bar harassment claims by ministers, but rather only applies to claims involving matters such as hiring, promotion, and termination. See Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004) (ministerial exception does not bar sexual harassment claim by minister), reh’g denied, 397 F.3d 790 (9th Cir. 2005) (two concurring and three dissenting opinions); Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940 (9th Cir. 1999) (novice’s sexual harassment claim could be maintained without excessive entanglement between church and state because religious order did not offer a religious justification for the alleged harassment, and plaintiff did not seek reinstatement or other equitable relief); Dolquist v. Heartland Presbytery, 342 F. Supp. 2d 996 (D. Kan. 2004) (First Amendment Establishment and Free Exercise Clauses did not preclude minister from pursuing Title VII sexual harassment claim against her church, because claims did not involve choice of clergy); see also Bryce v. Episcopal Church in the Diocese of Colorado, 289 F.3d 648, 657-59 (10th Cir. 2002) (although “employment decisions may be subject to Title VII scrutiny, where the decision does not involve the church’s spiritual functions,” minister’s Title VII harassment claim was subject to dismissal because it was based on communications protected by the First Amendment under the “church autonomy” doctrine; the doctrine is broader than the ministerial exception and bars civil court review of internal church disputes involving matters of doctrine and church governance). [53] Geary v. Visitation of Blessed Virgin Mary Parish Sch., 7 F.3d 324 (3d Cir. 1993) (lay teacher at church‑operated elementary school not a minister); Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990) (lay teachers of private religious schools who “perform no sacerdotal functions [nor] serve as church governors [and] belong to no clearly delineated religious order” are not ministers despite their sincere belief that theirs is a ministry); but see EEOC v. Catholic Univ. of America, 83 F.3d 455 (D.C. Cir. 1996) (ministerial exception barred Title VII sex discrimination claim brought by tenured member of Catholic university’s department of religious canon law). [54] Alicea‑Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003) (ministerial exception applied to Communications Director who was responsible for crafting the Church’s message to the Hispanic community); EEOC v. Roman Catholic Diocese of Raleigh,213 F.3d 795 (4th Cir. 2000) (ministerial exception applies to cathedral’s director of music ministry and part-time music teacher); Rayburn, 772 F.2d at 1168 (ministerial exception applies to associate pastor who had completed seminary training but was not ordained); Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999) (ministerial exception barred Americans with Disabilities Act claim by church choir director). [55] EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283 (5th Cir. 1981) (“[w]hile religious organizations may designate persons as ministers for their religious purposes free from any governmental interference, bestowal of such a designation does not control their extra‑religious legal status”). This exemption has a constitutional dimension under the First Amendment free exercise clause so this rule cannot be changed, even by statute. | Yes, they can ask Provided you attendance is voluntary and there are no negative repercussions (other than missing the learning opportunity) for not attending. If you have to go, they have to pay you. | I can only speak from experience for Pennsylvania, but this is how it works there: When you are working as a 1099 contractor you are "unemployed" for purposes of claiming unemployment. As you learned the hard way: you should apply for unemployment as soon as you lose your W-2 job. Every time you go to claim unemployment compensation the agency will ask if you have any earned income for the period you are claiming. That's where you would declare your 1099 income. Your unemployment compensation for the period will be adjusted accordingly. Basically you want to keep your unemployment claim "open" until either you secure full-time W-2 employment, or until you have exhausted your unemployment benefits. The system isn't setup to deal with any other scenario very gracefully. Of course, never omit or falsify information provided to the unemployment agency! | The IRS does not care, the only people who will care are your employers. If they find out, they may fire you. Whether or not this rises to the level of fraud whereby they could sue you depends on what false thing you said to get the job offer. You might get a good idea by reading the employment contract to see what makes you think this is a "9-to-5" job, and exactly what you are supposed to do. For example if both contracts say that you will work exclusively on the assignments by company A / B between 9 and 5 EST, M-F, and you agree to this, then you have materially misrepresented what you will do, which is fraud. But if the contract simply says that you will get the job done and will "make yourself available" for some of those hours, then it's not obviously fraud. Still, they can fire you if they don't like what you're doing. An alternative is that you could ask if they would allow you to burn the candle at both ends, which avoids any issue of fraud. If you're that good, you can offer one or both of them a week of trial dual-employment for a reduced rate, to persuade them. | I've litigated cases like these before. The IRS enforcement reaction is swift and severe. Penalties for the employer are heavy and rarely waived. It would be rare for a business like this to stay operational long enough to issue a W-2. A business like this would probably be shut down by the IRS and have the people responsible for the payroll function, at a minimum, promptly burdened with tax liens, within four to six months. These cases also constitute a significant share of all criminal tax prosecutions. The odds of someone doing this spending several years in federal prison is high. Generally speaking, if the wrongdoing is fully on the part of the employer without the collusion or knowledge of the employee, the IRS will not force the employee to double pay the taxes that should have been withheld by the employer in this situation. Instead, this IRS will try to recover the amounts that were withheld from the employees but not delivered to the IRS. It will seek to recover these amounts from the employer and also from other responsible persons in the organization (and from outsourced professionals) with the authority to pay the IRS who did not do so. There may be circumstances, if push comes to shove, where the IRS could collect from the employees in a case like this one (I've never had occasion to need to research that issue), but that would be the rare exception and not the rule, in practice. On the other hand, if the employer simply does not withhold taxes or prepare W-2s at all, and either 1099s people who should have been classified as employees (or files no information tax returns at all), the IRS will generally insist that the employee pay income taxes on the full amount owed and that they pay the employee part of payroll taxes. It will also pursue the employer for the employer's share of payroll taxes. The employer will also be jointly and severally liable for any taxes that should have been reported and subjected to withholding that are not paid by the employee (perhaps because the employee spent all the money). Sometimes cases like this are also criminally prosecuted, but it is less common to do so. |
Cyberstalking and RateMyProfessors.com Imagine this hypothetical scenario: I am a faculty at a state university. I have an entry at RateMyProfessors.com (http://www.ratemyprofessors.com/) that shows up when people search Google with my name. Unfortunately I have been cyberstalked (there is a letter written by a colleague). I have asked the university not to put my name on the university website. But my RMP entry is still on the webpage. Thus I am concerned that stalker will find me from RMP website. But RMP will not remove my entry from RMP website. There are no students posting on my entry at RMP website. How would I be able to force RMP to remove my information? | You would need a court order to force them to take it down. There is virtually no chance a court will order them to take it down, because it would be almost impossible to do so without violating the First Amendment. You would have to prove that forcing a publisher to stop saying that you teach at the university would advance some compelling governmental interest, and that there isn't a better way to advance that interest. It's not clear what you mean by "cyberstalking," but if you're talking about someone sending you harassing messages, then the court would probably conclude that the better option would be to punish the harasser, rather than limit the publisher's speech. You could try paying them off or sending a threatening legal demand, but I doubt either would go far. I suspect that the best course would be a persistent campaign to escalate up their chain of command to find a sympathetic person willing to help. Even that, though, I would expect to be tough, because I'm sure you wouldn't be the first person trying this. | I'm not aware of any cases on point, but as a rule legal fig-leaves don't play well in court. If the webmaster simply puts up a banner saying that EU residents are not permitted but takes no other action to exclude them, then that is going to be considered irrelevant. The webmaster is still very likely required to comply with the GDPR. On the other hand if the webmaster takes other steps to exclude EU residents, such as using a geolocation service to block connections known to be in the EU, validating email addresses and blocking those from EU domains, and ejecting anyone who mentions that their residence is in the EU, then that is more likely to be seen as a good-faith attempt to avoid being subject to the GDPR. It will also have the practical effect of greatly reducing the number of actual EU residents. All these controls can be evaded, but it would be much harder for any data subjects to claim that they acted in good faith or that the webmaster acted in bad faith. Note that validating an email address or logging an IP is itself processing of personal data, so anyone implementing such a system still can't ignore the GDPR completely, but it would greatly limit the scope and make it easy to delete any such data after a short time. (Note: the term "EU resident" above is an approximation of the territorial scope). | united-states Is a personal text (like a diary), submitted without the consent of the author, admissible evidence? Usually, it is admissible evidence. There is no legal right to keep your diary private. Production of a diary may be compelled by subpoena and admitted into evidence subject only to general considerations regarding whether particular entries in the diary are inadmissible for some other reason (e.g. lack of relevance, they recite the contents of an otherwise privileged discussion, they contain hearsay, they recite the terms of a settlement offer, the recite inadmissible prior act evidence, etc.). If the diary revealed information that could place the diarist at risk of criminal prosecution, the 5th Amendment privilege against self-incrimination could arguably be claimed even in a civil case, but at the risk of an adverse inference to be drawn from that decision in civil matters. I haven't ever seen how that issue is resolved legally. | From what I can see on the USPTO registry, "tweet" is still not trademarked for the purposes you're talking about. Twitter has been working to secure that trademark, but I can't find any record of them having actually secured it. Just the same, I'd predict that using it will get you at least a cease-and-desist letter, and possibly a lawsuit. Whether you'd win that case seems to be a very open question, but that presumes you have the resources to litigate. | Your question (when read with your follow-up comments) is somewhat complex, so I am going to make a few assumptions and break it down into several sub parts. Assumptions The conviction occurred in a state where the expungement statute allows you to tell employers that you were never arrested and convicted. When you say “public records websites” you’re asking about sites like atlaspublicrecords.com. That atlaspublicrecords.com is a US based company. They don’t list an address and the website used a private registration services, so can’t easily determine that they are US-based. Your questions and follow-up Considerations After I get it expunged, will it be removed from public records websites . . . . No. Websites like atlaspublicrecords.com do not link to actual public records. I searched a couple of common names and feel safe in assuming that it only collects and publishes the information—it does not actually link to court records. Nevertheless, it would not be available from the actual government agencies that keep those records. By getting your records expunged the convictions and arrest would no longer be available as public records that someone could request from the courthouse, police department, or whatever state agency does criminal history in your jurisdiction. do I have to show them proof of the expungement . . . . Yes, if you believe what the website claims. I can’t find a physical address for the website and don’t know if they are real or a scam, so understand that when you give them information about your expungement—or pay their silly fee, they might collect the money and do nothing. My opinion is that the company is shady and seems to operate in a gray area of the law that I will explain below. Options if they don’t remove the post: You could try to sue them for some type of secondary dignitary tort like defamation or false light. But these would have some significant legal hurdles. See G.D. v. Kenny, 15 A.3d 300 (N.J. 2011), where the New Jersey Supreme Court held that commenting on an expunged criminal records was not defamation or invasion of privacy because it was the truth. You could try to argue that they are a consumer reporting agency under the Fair Credit Reporting Act (“FCRA”). If they're governed by the FCRA, you have some additional legal remedies (like civil penalties/fines) if they don't remove/clarify an expunged record. The Fair Credit Reporting Act applies to credit reporting agencies, like Experian & Equifax but also covers companies that compile and sell information for background checks. This includes criminal records. See the Federal Trade Commission’s Advisory Opinion to LeBlanc (06-09-98). But . . . this website is operating in a gray area that appears to comply with the law. The FCRA only applies to consumer reporting agencies, which are defined as: Any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports. 15 U.S.C. § 1681a(f) Because they’re not charging money or a fee to access the reports and they’re not a nonprofit cooperative, they probably do not meet the definition of a CRA. Bottom-line is that you're best option is to give them the expungement documents once you obtain them. | It follows from case law from the ECJ, e.g. C‑70/10 (28 January 2010) and C-582/14 (19 October 2016), that IP-addresses are personal data. Since my interpretation of the case law differs from the interpretation offered by @Greendrake, I'll go into the relevant case law in a bit more detail than I did in my initial answer. TL;DR: Yes, IP-addresses in server logs are personal data and you need to declare IP-address logging in your privacy policy. As I said, we need to examine the case law I mentioned in the introduction to find out whether IP-addresses are personal data. The first of those are ECJ C-70/10. In this, the court concludes that all IP-addresses are "protected personal data": It is common ground, first, that the injunction requiring installation of the contested filtering system would involve a systematic analysis of all content and the collection and identification of users’ IP addresses from which unlawful content on the network is sent. Those addresses are protected personal data because they allow those users to be precisely identified. (my emphasis) Then, in 2016, the ECJ ruled in a more narrow case ECJ C‑582/14 specifically ruling on dynamic IP-addresses: The court goes through a number of deliberations, then concludes: Having regard to all the foregoing considerations, the answer to the first question is that Article 2(a) of Directive 95/46 must be interpreted as meaning that a dynamic IP address registered by an online media services provider when a person accesses a website that the provider makes accessible to the public constitutes personal data within the meaning of that provision, in relation to that provider, where the latter has the legal means which enable it to identify the data subject with additional data which the internet service provider has about that person. It is very clear from this text that the court does not challenge or invalidate ECJ C-70/10 on static IP-addresses. The court is very careful, in its ruling to point out its ruling is specifically about dynamic IP-addresses. So the ruling of ECJ C-70/10 still stands for static IP-addresses, these are always protected personal data. I believe this case law is summarized in Recital 30 of the GDPR. This recital lists the identifiers that may make natural persons identifiable: Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. (my emphasis). Since it follows from case law that static IP-addresses always makes the data subject identifiable, and dynamic IP-addresses may make the data subject identifiable, I will conclude, based on jurisprudence alone, that: Unless you are able to filter your logs to exclude static IP-addresses. I think you must consider IP-addresses protected personal data under the GDPR. However, in ECJ C‑582/14, the ruling about dynamic IP-addresses hinges on the controller having legal means to identify the data subject by connecting the IP address to some other data. The court seems to think that getting access to ISP logs is the only means of doing that. This is wrong. In 2015, the Norwegian computer scientist Einar Otto Stangvik identified 78 Norwegians who seem to have downloaded abuse material starting only with their IP-addresses. Stangvik did this while working as a consultant for Norway's larges newspaper VG. I know Stangvik and I am familiar with the methods he used. I've tried them myself, and they work. Stangvik did not have access to ISP logs, he did not do anything illagal, and the 78 natural persons identified only by means of their IP-address, combined with other data the Stangvik had legal access to. I will not go into details, I will just say this: If you know how to do this, getting to the natural person when you know the IP-address is not difficult or labour-consuming. To return to the question: It also follows from the GDPR that logging of IP-addresses falls under its definition of "processing". Your privacy policy should list all personal data personal data that is collected by yourself and third parties ("processors" in the terminology of the GDPR) that you rely on. Your hosting company is such a third party, and you need to declare the logging of IP-addresses in your privacy policy. | The purpose of the button is not to put liability on you, but to shield the website from liability. The website does not want you looking up information about drugs, deciding that a particular drug is right for you, causing yourself harm and then blaming the website. You may have acted unlawfully but you would have no liability because no injury (financial or otherwise) has been caused to the website. Clicking the button is an assertion that one is a medical professional. This is a false statement, so the website could sue you for the tort of deceit, but there is no injury, which is one of the elements of deceit. The website would not even get nominal damages. The button may also constitute a contract. In exchange for access to a website, you warrant that you are a medical professional. You are not, which is a breach of the contract. However, the damages are nil. Conceivably, if you passed the information on to someone else who misused it, there may be some injury to the website, and then you would have to compensate the website for that injury under one or both of the heads of liability described above. In terms of criminal liability, it is rarely an offence to make a false statement to a private body without some other aggravating element. For example, in Australia, it is an offence to make a false statement for financial gain, or to make a false statement to a government official (regardless of whether there is financial gain etc). But simply making a false statement is not by itself a crime. You may breach a computer law. The United States Computer Fraud and Abuse Act is pretty broad. Obtaining information from a computer without authority is an offence: 18 USC s 1030(a)(2)(C). The only exception is if the web server is in the same state as you and somehow nobody from outside the state can access it: see definition of 'protected computer' in 18 USC s 1030(e)(2). | There are multiple issues with what you are trying to do, including issues with copyright, personality rights, and data protection. You are trying to use other people's content and likeness for your advertisement. Unless you are certain that you can do this in your relevant jurisdictions, without their consent, this sounds like a very bad idea. At least under GDPR, “but they made it public” is not an excuse. Personal data is personal data regardless of how you acquire it. The GDPR also has a very broad concept of identifiability that goes beyond direct identifiers or PII. If you want to use other people's personal data, you need a legal basis, and must provide them notice about your processing. Consent (informed opt-in) is one legal basis, legitimate interest (opt-out) another. You are suggesting to avoid this by blurring PII, but you may also have to blur other content that is indirectly identifiable. Real anonymization that meets the GDPR's definition is a really hard problem. In some cases, a legitimate interest is able to avoid such problems. E.g. if I make a video with commentary about a Tweet, it would likely be OK to show surrounding personal data like the responses including the identities of the various accounts, to the degree that this is relevant to the commentary and/or necessary for proper attribution. However, that commentary likely has strong protections under freedom of expression. At least from an European viewpoint, a tutorial, demo, or advertisement would not have a freedom of expression argument that would shift a GDPR legitimate interest balancing test in your favour. Instead of blurring almost everything in your video or working on GDPR compliance, content licenses, and release forms, you should consider a different solution: create dummy content just for your videos. You can use your own content, and maybe add a dummy profile. |
Is there any way of having sex without risking jail in the United States? I recently read a story about a 19 years old boy sentenced to jail and to be registered as a sex offender for 25 years for having sex with a 14 year old girl who lied about her age. The girl and her mother testified on behalf of the accused, saying that the sex was consensual and that she told him she was 17. Unfortunately, that didn't matter. I read that if she showed him a fake ID so well done it's impossible to discern from a real ID, that wouldn't have mattered either. I also read that even with notarised written statements you will still be found guilty. (Curiously enough the reverse, ie propositioning sex to a person who is over the age of consent but lies saying they're younger, is also illegal) Radiocarbon dating for samples less than 100 years old is so unreliable it's basically useless. Even if the person looks very old, there are certain diseases that cause rapid ageing so they potentially are underage. With all that in mind, is there any way to have sex on US soil without running the risk of being labeled a sex offender? | In many US states (and in the UK), statutory rape is a strict liability offense. This means that there is no intent requirement at all; the only allowable defenses are those that negate the actual act (there was no sex, the person was of age, or sometimes that the action was not a conscious or voluntary action), it falls within a statutory exception to the crime, or there is an applicable defense that has nothing to do with intent. Many general defenses do not apply to strict liability crimes; in particular, "I thought X when Y was true" tries to show there was to intent to commit the crime, which is irrelevant. In Michigan (where the crime took place), statutory rape is evidently such an offense. That throws some standard defenses into doubt, because anything based on negating criminal intent doesn't matter. However, Michigan does specifically say that it is not criminal to have sex with a person under 16 if they are your legal spouse; this is a very common exception to statutory rape laws. So, marriage is a way to not risk jail for statutory rape in Michigan. However, things do vary by state. In Indiana, it is specifically a defense that the defendant had a reasonable belief that the victim was over the age of consent (unless it was a forcible rape). | "Kidnapping is the unlawful taking away or transportation of a person against that person's will" The crime would occur if the second person was taken by the first, the age of the perpetrator is immaterial to the commission of the crime but it will affect where and how it is prosecuted. The age of the victim will matter as the victim must be old enough to competently grant consent - if they are too young to do so then it will be a kidnapping. On the face of it "running away together" does not imply an unwillingness. Note also that kidnapping is the crime of "taking away"; holding a person against their will is the different crime of false imprisonment. | It's naive to assume a college age hacker (or a hacker who bases his/her attacks from an academic institution) is treated differently than a "real" hacker, whatever a real hacker might be. The sentence any convicted hacker receives depends on many factors: the prosecutor, the evidence, veracity of witnesses, jurisdiction (academic or not), previous criminal records, the actual laws the person is being charged under, the judge, the jury, the lawyers, plea bargains, media coverage, etc. There are so many factors that the outcomes of the prosecutions of "hacking" crimes can be very different, re: your examples. Read about each case and you'll find many differences. Academic fraud or any form of fraud are completely different crimes. Hackers can commit fraud, but not all fraud involves hacking. Being convicted of fraud can sometimes happen if the evidence for a hacking charge is weak, or other factors. Again, that involves the specific case, the prosecutor, laws, the evidence, etc. | The question is not properly framed in terms of the law: the relevant question isn't in terms of achieving orgasm or not, it is in terms of consent. Is it rape to continue having sex, when one party withdraws consent? In North Carolina, following State v. Way (rather sparse on details), consent explicitly cannot be withdrawn. In Illinois, on the other hand, under 720 ILCS 5/11-1.70(c) A person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct. In South Dakota, it is not clear. In State v. Jones, 521 N.W.2d 662, there was a proposed jury instruction stating An act of sexual intercourse does not constitute rape, where the female initially consents to the act, but after penetration, withdraws her consent, and the male, without interruption of penetration, continues the act against the will of the female and by means of force. The proposed authority for such an instruction was the California case People v. Vela, 172 Cal. App. 3d 237, where it was conclude that continued intercourse after consent is withdrawn is not rape. But the South Dakota court rejected that ruling and instruction, and the defendant was convicted. But: the court also found that the victim submitted, and didn't consent – in other words, South Dakota has not definitively answered the question. The California finding was ultimately overturned by the California Supreme Court in re John Z, finding that A woman has an absolute right to say “no” to an act of sexual intercourse. After intercourse has commenced, she has the absolute right to call a halt and say “no more,” and if she is compelled to continue, a forcible rape is committed. The general answer in the US that it is legally undecided: it is definitely decided in California and Illinois that intercourse past the withdrawal of consent is rape, and in North Carolina that it is not. This article cites other case law, but on average, it has has not been clearly determined if continuing intercourse after withdrawal of consent constitutes rape. | Courts, particularly traffic courts, tend to take a police officer's word over that of an accused person. While legally the limit is 70, the driver has very little recourse if the officer claims falsely that the actual speed was over 70. But the deterant effect of a posted limit is lost, since drivers in general have no way to know that Officer O will ticket anyone going over 60. I suppose that driver D, or D's lawyer, could subpoena calibration records of any radar gun or other measuring devise used, and could insist on its being tested. However, unless they had reason to think there was an issue, I wonder if D and D's lawyer would go through that process. Some speed measuring devices print a paper slip showing the date and time along with the reading. If such a device was used that record would be harder to alter. Some cars are now equipped with devices provided by insurance companies that record speeds and other driving info in a secure way to help judge a driver's safety and allow individual rate setting. It might be that the record from such a device would be admissible to show the speed was under the posted limit. But there is a sense in which the law is what the police and the courts enforce. If anyone who drives the road over 60 is cited and must pay, one could say the effective limit there is 60. | One place to look is the incest statute, 18-6602, which says: Persons being within the degrees of consanguinity within which marriages are declared by law to be incestuous and void, who intermarry with each other, or who commit fornication or adultery with each other, are punishable by imprisonment in the state prison for a term not to exceed life. The relevant statute pertaining to consanguinity and marriage (32.205) states: Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half (1/2) as well as the whole blood, and between uncles and nieces, or aunts and nephews, are incestuous, and void from the beginning, whether the relationship is legitimate or illegitimate. A literal reading of the law with attention to the bold part tells you that the prohibition of marriage between brothers and sisters of full or half blood does not preclude marriage between blood-unrelated sibling. It does, however, not grant the same right to aunts and nephews etc. (including those by adoption), which could engender competing claims about legislative intent. It would then be relevant to look at the Washington analog of this statute, RCW 26.04.020, which prohibits marriage: (1)(b) When the spouses are nearer of kin to each other than second cousins, whether of the whole or half blood computing by the rules of the civil law. (2) It is unlawful for any person to marry his or her sibling, child, grandchild, aunt, uncle, niece, or nephew. Here, the blood-relation rule applies to (second) cousins and is absolute for aunts and sibling. It would seem that various legislatures had different intents, in forming these statutes. In Oregon, ORS 106.020 prohibits marriage When the parties thereto are first cousins or any nearer of kin to each other, whether of the whole or half blood, whether by blood or adoption, computing by the rules of the civil law, except that when the parties are first cousins by adoption only, the marriage is not prohibited or void In this case, the Oregon law explicitly equates blood and adoption, and then could cast doubt on the concept of "whole or half blood" as actually referring to blood relationship (although, Oregon is not Idaho, or Washington). Given the literal reading of the Idaho statutes (and without there being any clarifying case pertaining to relationship by adoption), it may take a court order to compel the county clerk to obey the law, especially if the clerk is dispensing life choice recommendations. That is especially so if the law is not clearly established. Montana likewise restricts (40-1-401) a marriage between an ancestor and a descendant or between a brother and a sister, whether the relationship is by the half or the whole blood, or between first cousins That statute also says Parties to a marriage prohibited under this section who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment. However, there is no obvious way to get legally unadopted, especially when the parties are adults. An additional wrinkle is that in Idaho under 32-209, valid marriages entered into elsewhere are valid in that state unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state. But it is established law that same-sex marriages are legal. The bold section is clearly unconstitutional; the question then is whether if you took this to SCOTUS, they would strike down the entire statute (a number of states still have such language on their statute books, e.g. Montana still declares that marriage is between a man and a woman). At any rate, a lawyer is probably mandatory. | I did a lot of digging through case law and statutes, but I don't see a definition for "biological sex" anywhere in federal law, though after looking through those cases, it seems pretty clear that courts think of "biological sex" as a definition of "sex," and that they take it to mean the sex listed on your birth certificate. Even if we could find a straightforward statutory definition, it probably wouldn't do much to inform the interpretation of this memorandum, as it would only apply to the specific section of law in which the definition was included. | Sometimes running away is a juvenile offense, but it is not an offense for which an adult aged eighteen or over would be arrested or punished. An adult would not be returned home. |
How are businesses based outside, but doing business inside of the US taxed? I am looking specifically for how the U.S. taxes businesses that originate from another country, but are doing business within the U.S., with or without operations taking place at a permanent address in the U.S. The source for this information should preferably be a .gov website. | They are generally taxed on the portion of their income that is effectively connected with the United States at the same tax rates that apply to domestic C corporations. But, this can be modified in some cases by tax treaties with the country where the corporation is incorporated. The definition of what constitutes "effectively connected income" is a bit arcane but basically involves income from either real estate or an active trade or business within the United States, as opposed to passive financial instrument income such as interest on a bond or promissory note, dividends, or capital gains on the sale of a security. There are many gray areas, which international tax lawyers make their livings cultivating and navigating. | For a definite answer, Bob should ask his tax advisor. German freelance status ("Freiberufler") is a bit difficult to navigate, because legally speaking, this status can only be applied to contract work that requires a university degree, everything else is a regular business ("Gewerbe") that is taxed differently and requires you to join the chamber of commerce. This has become a bit murky as there are freelance software developers without a degree (who should be careful about using the word "engineer") and the tax office seems to accept that, but I'm not entirely sure they are as lenient towards entertainers (which YT would fall under). The way I understand the Blue Card FAQ, freelancing is not allowed for Blue Card holders, I'd consider that the bigger problem (but that's an immigration issue, not a tax issue). | No. Reason: Taxes are not a contract for specific services, so even if the government did nothing for you in return for your taxes, you do not have recourse to a rebate for "breech of contract." The only recourse is political. Theoretically if the government failed to provide a service that was required by law or Constitution, there could be legal action to force the government to do that action but you still don't get your tax money back. It might be an interesting act of civil disobedience, but no not legal. That is the answer. But to address some of the other premises of your question (Note: these are irrelevant because see above answer): The U.S. government runs at a deficit anyway, meaning the amount spent each year is more than the amount of revenue collected. For example, in May, 2018 the CBO estimated that for FY2018: BUDGET PROJECTIONS FOR FY 2018 (As of May 24, 2018 ) OUTLAYS $4.1 Trillion REVENUES $3.3 Trillion DEFICIT $793 Billion DEBT HELD BY THE PUBLIC (End of Fiscal Year) $15.7 Trillion So even if in the partial shutdown, gov saved 20%, every cent of your taxes would still go to the expenditures; the deficit would just be a little less. The U.S. government is saving quite a bit of money by not paying some subset of its employees, etc. .... believe that many of those employees will not receive back-pay. Probably not true. In the past modern shutdowns, employees received the back pay, whether they worked as emergency employees or were home. A bill as already been proposed in Congress to ensure that all will be paid when this ends. Some contractors might not get paid because they get paid by their employers, not directly by the gov. So in some cases no work, no pay. There are bills proposed to get them paid also. Note- I do not at all mean to downplay the effect on people's finances and morale. Missing a paycheck today even if the money will/might come eventually is a real hardship. | The usual method is that every country charges you income tax for income that you make while your body is in the country. Big exception is the USA which wants a chunk of every income, and some countries like Germany calculate your tax rate based on world wide income, but charge that tax rate on your income in Germany. "Double taxation agreements" usually have the purpose that if two countries think you should pay tax on the same money, then somehow you only pay once. If you were a US citizen, then being tax-free in Indonesia wouldn't help you at all, because the USA would want full US tax minus zero Indonesian tax. In the UK, you need to check what money you have to pay tax on as a UK citizen, especially in the first and last year when you are still in the UK. For the use of a bank account in which country, ask a lawyer. Especially as making a stupid mistake could be very costly. It may be easier to set up a company in Indonesia and your company pays the company, because it is very unlikely that your UK company wants to learn about Indonesian tax law and risk getting it wrong. | In term of international trade practice , "Taiwan" is technically the "Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu (Chinese Taipei)" based on the entry agreement of World Trade Organization (WTO) . It's similar to "Hong Kong" even that's a little different in legal term and tax practice. | It might possibly be illegal. For criminal law, usually you need to obey the laws of three countries: The country you are a national of (by personality principle) The country from where you make the sale (by territoriality principle) The country that hosts the attacked interest (by territoriality principle) Then it depends on the jurisdiction (and other factors) whether the sale is legal or not. I'll use the example of my country, Czech Republic. There is a crime called "Unauthorized access to a computer system or data storage device". For example, you commit this crime by exploiting a vulnerability in a web application and copying the web owner's data on your computer. It is also codified that whoever wilfully facilitates the committing of a crime by providing the criminal with resources (such as the exploit) is considered to have also committed the crime. For this to apply, you must have known or expected that the exploit will be used to commit a crime. The courts would decide this. | Visa is incorporated in Delaware. So is MasterCard. In addition, both are headquartered in the US, have huge quantities of assets in the US, do lots and lots of business in the US in a highly regulated sector, and their very existence depends on their ability to interact with the US banking system. The US has the authority to regulate all of these things, under literally any definition of sovereignty. Therefore, they must comply with sanctions. | This is a well established model in the UK. One route is the umbrella company. Y here would be the umbrella company. A would then either be providing services to Y or be employed by Y. You may be wondering what use it is if A is employed by Y. The answer here is that whilst A may not benefit from the tax treatment, X does not bear the burden of running PAYE etc. Further, because of regulations such as IR35, it may be that there is a doubt as to whether employment tax apply even if there is a contract for service. Essentially disguised employment means taxes are levied on the employer as if an employment existed; however, in this situation X has the comfort that if this arises they will (normally) fall on Y rather than X. Another route is the service company, where normally A himself will own it (or it is owned between A and A's spouse), take a combination of salary and dividends out (using two allowances if owned between spouses), and he will bill X or Y; companies exist which will perform all the necessary paperwork to do this (in which case Y is called a managed service company), as opposed to a personal service company (if A sets it up himself). It's not clear where you are based, but if you are based outside the UK (and possibly if you are inside the UK) there are accountancy companies that specialise in setting all this up. |
Can student loans be used in retirement, brokerage, savings, checking, and 529 accounts? I am aware of the purpose of Student Loans. However if not immediately used, I park some of the money in a savings account. But would it be legal to use the same funds in a retirement account (roth ira), brokerage (index funds, stocks, bonds, etc.), and college 529 accounts, to purchase investment instruments? Given the nature of the question, let me know if I should ask a mod to migrate this question to Personal Finance and Money SE instead. | Yes. You could use student loan proceeds for these purposes. Student loan proceeds are not tracked or traced. If you did so on a wholesale basis (taking out loans intending to cancel your courses before tuition it due to raise money for other purposes), you might be engaged in loan fraud, but since student loans cannot be discharged in bankruptcy, while other loans can be discharged in bankruptcy, that would be a very stupid, self-defeating kind of fraud (which isn't to say that I haven't encountered it once or twice). Some tax preferred accounts (e.g. for retirement) have contribution limits based upon your taxable earned income, however, so while you could use student loan funds to put into those accounts, there would be strict limits on your contributions due to your low income. | Are there any federal or state laws in the US regulating which models can banks and money lenders use to decide for/against lending money to an individual? There aren't really safe harbors regarding what lenders can use. There are only laws that prohibit certain practices like discrimination in lending. Everything else is permitted. ow do you ensure that your AI model doesn't have a variable that indirectly or directly takes into account ethnicity when making a decision). Using a "black box" machine learning or AI model is inherently risky legally because it isn't transparent and there is no good way to demonstrate that discriminatory effects aren't due to to discriminatory factors as opposed to neutral factors. AI models tend to pick up on impermissible factors by attaching weight to factors that aren't substantively important, but are correlated strongly with impermissible factors, for example, assigning different weights to different surnames. On the other hand, if you can spell out the precise formula by which your model is constructed (in a closed court proceeding if necessary to preserve trade secrets) and can demonstrate that no impermissible factors are considered, directly or indirectly, then your mathematical model is very likely to be upheld as legal and permissible. | There is nothing illegal with doing this (absent specific contractual terms or industry regulations to the contrary in particular cases, e.g. in the case of export controlled high technology products). This is called operating a wholesale business or operating as a broker. Lots of legitimate legal businesses have this business model. | Apparently not The full text of the license is not included on the page you link to, or on any linked page that I checked. But the FAQ says: free educational licenses can be used strictly for non-commercial educational purposes (including academic research). Exactly how this company defines "non-commercial educational purposes" is not stated. If work is done on a student project, and after a non-student license is purchased that project is commercialized, would the license have been violated, and if so, would the company be likely to sue? The fist question cannot be answered without the full text of the license, and the second would require reading the minds of the company officials. But it seems reasonably clear that this is not what the company has in mind. Another user has pointed out a link to the actual license terms which I failed to note. Section 3.1 of the license says, in relevant part: ... JetBrains grants You a non-exclusive and non-transferable right to use each Product covered by the Toolbox Subscription for non-commercial, educational purposes only (including conducting academic research or providing educational services) ... This would seem to confirm what the FAQ quoted above says. It is hard to see how any development intended as an eventual commercial product would be covered under such a license term. It would appear that a regular non-student license would be needed for such use. | If you buy a house and your wife signs a quitclaim deed to you, that transfers to you whatever rights she has in the house. Similarly, if you and your wife sign an agreement that anything deposited in a particular bank account in your name would be your separate property, that would override the pre-nup as far as that account was concerned. Such an agreement could include a dollar limit per month or per year, or an explicit purpose, such as savings for a down payment. (It could be thought of as a gift to you of her share of any funds deposited.) Giving property to your parents or others with the understanding that it will be returned on your request might be seen as an attempt to evade the pre-nup, and a court might hold that the property was actually shared, if you ever do divorce. There might also be gift tax issues if the value is high enough. Whether asking your wife to agree to a quitclaim or any sort of agreement to modify the pre-nup would help or harm your marriage I cannot know, nor did you ask that. But I would think that for most people being open would work better than going behind a spouse's back. None of this should be taken as legal advice. I am not a lawyer. | My understanding is that the "flow-through" treatment is specifically a tax law concept. The LLC has its own income, which it can use to pay expenses or acquire assets or for whatever other purpose, and such assets become the property of the LLC. It's just that when it comes time to pay taxes, the LLC's net income is taxed as income to the owner. But that does not mean that the LLC's income is treated the same as the owner's income in all other legal contexts. | It's essentially a legally enshrined incentive for high net worth investors to supply capital, which is consistent with the other entities that qualify in § 230.501. It tends to come with increased access to riskier offerings, where the risk ensues from exempted registration. While nominal dollar thresholds typically get eroded away by inflation, they needed a line in the sand to represent financial sophistication. Speculation: I suspect the initial number was a ballpark attempt to approximate the point at which individuals (at that time) tended to be involved in more complex projects (e.g. certain hedges and ventures). | No, because you are affecting the car's value by selling its parts. The car is collateral to the loan, so if you don't make the payments, the lender has the right to repossess and resell it to recoup their money. If they are unable to recover at least the outstanding balance of the loan through resale, you will be on the hook for the difference. This is called a "deficiency balance". Simply having possession of something isn't adequate basis to decide you can do whatever you want with it. You have physical possession, but the lender is the first lien holder on the title until the loan is satisfied. |
Software developer not getting paid for contract work I'm in Canada, subcontracted for a company in the US. I have been working with them for 4 months. They refused to pay me for the last month I worked, giving a reason that my work is not up to their expectation. I told them this would go to court and that I can defend my work, and they threaten to sue me back for whatever reason. We don't really have an official contract, but I got an email that states all the details. We agreed on hourly rate, not project-based, since they don't have a clear requirements set out. Two questions here: I planned to sue them in small-claim in Boston, where their company is. Could my travelling expense from Canada be included in the claims? What could they sue me for? Even if there are some flaws in my work, but those've never cost the company any lost. | If you are subcontracted, then some other company is going to use the code that you wrote, and since you were not paid for it, you are the copyright holder. A letter to that company's legal department might work wonders. | Can a significant change in incentives void an employment contract? Yes, because a party's unilateral, significant imposition which the counterparty did not expect strikes the premise of a contract/agreement being entered knowingly and willfully. Here, the contract or relevant portion thereof is voidable by the employee, because the employer's belated imposition is tantamount to a misrepresentation as contemplated in the Restatement (Second) of Contracts at § 164(1). The contract clause regarding an employee's off-work hours might be unenforceable as unconscionable, more so where the incentive being slashed represents a significant portion of an employee's income (since it reflects that the employee's salary is not that high so start with). See the Restatement at § 177, 178, and 208. is the employee entitled to any compensation or the right to retain the property? Yes, but the applicable alternative --compensation vs. withholding the IP-- depends on what agreement the employee reaches with the employer. I presume what prompts this part of your question is the mention --in the Workplace SE post-- that the engineer rejected the employer's bid (offer is somewhat of a misnomer) of $25,000 for the employee's off-work IP. The engineer's reluctance is rightfully cautious. Prior to accepting the employer's proposal, it is in the engineer's best interest to ensure (with enough specificity in a new contract) the terms and conditions of that proposal, lest the employer subsequently argue that the payment of $25,000 encompassed any and all subsequent IP produced by the employee during his employment there. Likewise, insufficient caution by the engineer regarding the aforementioned proposal may permit a finding that the parties' subsequent conduct reflects the engineer's acceptance of the new conditions (including the slashing of incentives). | In general, "making a reservation" does not create a contract, except when it is obvious that you have a contractual agreement. That would be the case with an airline reservation, and one clear sign is that you have to pay for the ticket when you make the reservation; or, it you don't, then there is no contract, and they can cancel or change the price. You would look for clear signs of an agreement, such as a "agree to terms" button that you have to click. Paying a deposit is another clear sign. Then you would simply look at the terms of the contract to see what their obligation is, and what yours is. They may have strongly committed to providing service in which case you might have a cause for legal action if they break that commitment, or they might have made no specific promises about service in case of intervening events (such as if the chef has a heart attack, or the power goes out). If we do think of this as a contractual matter, you breached your duty as a customer, to be there by 7:30, so even if there is a contract, they didn't break it. The note that you added renegotiating the arrival time was insufficient – it is outside of the contract, and possibly something that they didn't see (they only look at the names and official time blocks reported by the web page). In lieu of a contract, there could be some statutory obligation, i.e. a specific regulation in Sweden saying "if a restaurant accepts a reservation, they absolutely must hold the space available for the entire reserved time", which is an unreasonably onerous business practice that no nation requires. | How should I proceed? I am asking law friends to recommend some employment lawyers, but other than this, can I do anything else? You definitely don't need an employment lawyer for this. From a legal standpoint, the matter is very simple: If you grant their request (whether by signing or otherwise expressing your acceptance), you would be waiving any remedies currently available to you for their breach of contract. The company's attempt to override its contract with you is quite naive, but the company can always (and evidently does) try to get away with its liability nonetheless. I would not be surprised if the company subsequently tries harder to intimidate you, but that does not change your legal position & merits unless you sign the waiver the company is pursuing. Asking for your post-termination availability reinforces the notion of company's poor planning and subpar management. | If Client was foolish enough to pay Bad Contractor (BC) without obtaining a proper assignment of copyright in the source, or at least a sufficient license to allow Client to use the code and create modified versions, then BC owns the copyright to the source, and anyone who creates a modified version without permission from BC is a copyright infringer. The contract under which BC was hired should spell out what rights Client is to acquire, and when they will pass to client's ownership, but it might be that Client didn't get such terms into the contract. Or perhaps BC disputes that Client has fulfilled all its obligations. Yes, an infringement claim could be brought against an individual employee, although it is more likely that it would be brought against the employer, or against Client. It could be brought jointly against all three: programmer, new contractor (NC), and Client. Of course, BC's IP rights only matter if BC files an infringement suit. And it might be that a court would find an implied contract, in line with industry practice and the fees that BC was paid, and toss out such a suit. But courts are often reluctant to create contracts that the parties never agreed to. It would be risky for NC to depend on such an outcome of a possible suit. If you or NC are to work on this, you might want to have a contract in which Client explicitly indemnifies you for any copyright claims by BC, saying that they will take on and pay for the defense of any copyright suit BC may bring, and pay any damages that may be awarded to BC. That would largely remove the risk for NC and for NC's employees. | It is not necessary for an agreement to be verbose and written by a lawyer, for it to be binding. There is some danger in having untrained people writing up agreements (they don't know the distinction between "what the law says" versus "what we had in mind"). The agreement is binding, but their interpretation of the contract language does not automatically prevail. The statement "ALL TUTORS ARE PAID 8 HOURS, unless told otherwise" is slightly problematic since it is not true (you can't pay time, you pay money for time spend). With no other statements about time and payment, and just looking at the words, this says that an employee will be paid for 8 hours work, period. Unless they say something different. That could mean "even if you work 20 hours, you only get paid for 8" (illegal under various labor laws), or it could be "even if you only work 2 hours, you get paid for 8" (the most reasonable interpretation). The interpretation "You are limited to 8 hours of work per pay period / contract" is not a reasonable interpretation: that isn't what the clause says. Such a limit could be clearly expressed ("can work up to 8 hours" is a clear way to state the limit), and since they didn't say anything like that, that is not how the courts will read the clause. They can, however, inform you otherwise, e.g. say "your minimum automatic pay is now 2 hours", or "we will only guarantee 2 hours work", and at that point that's what the number is. Since this is (presumably) a take-it or leave it contract which they wrote up and you didn't actually negotiate, any unclarities are legally interpreted in your favor. If you have worked more than 8 hours and they are using the contract language to argue that you won't be paid for the overage, that is not at all likely to hold up in court. Under terms of the contract (interpreted as stating a minimum guarantee of hours), they can inform you that your new minimum is 0 hours. Also, unless there is some kind of tenure clause, they can terminate the contract at will, and maybe they'll hire you under a different contract. What the terms of employment were for you in the past does not matter, what matters is what the current terms are. If you did not pay attention to the fact that they changed the terms of the agreement as of this quarter, that is not their problem. If they decided to change to "actual hours worked" after the current contract was formed, and they informed you of that fact later, then thereafter that is what the agreement is. Until you are notified of that change, the guaranteed minimum is what it says in the contract. In case their argument is "The university sets this policy, the department made a mistake in not informing you", the university has to take responsibility for the errors of their inferiors. | IANAL, but a EULA is a Contract of Adhesion https://www.law.cornell.edu/wex/adhesion_contract_contract_of_adhesion and restrictions against publishing benchmarking data about products is fairly common https://www.eff.org/wp/dangerous-terms-users-guide-eulas A contract is a contract, even a click-through, and is legally binding; there is plenty supporting case law. You sign when you click: http://smallbusiness.findlaw.com/business-operations/contracts-and-electronic-signatures.html Basically, VMware has lots more money than you do. If they are annoyed at your posting of benchmarks that don't make their products look as good as they feel they should, they can at very least send a DMCA to the site that posts the benchmarks. Whether that works could depend on where the website is hosted. At most, they could take you to civil court, if you are in their jurisdiction. What happens, if you refuse to take your unapproved benchmark down? Can they sue you? Yes. (In civil, not criminal court). How much leg does a clause like this stand on the courts? In the United States? A contract is a contract. And VMware and you (I assume) are in the US, so the contract is enforceable. In the rest of the world? Outside of the US, enforceability is variable; that is searchable in law databases for each country and agreements between countries. Consider your motives for posting benchmarks against VMware's EULA. Do you have good points to make? Or are you simply complaining about the product? Who has more money to spend defending or fighting the EULA? You or them? If you're seriously concerned about this, talk to a lawyer and don't take legal advice from the general public. | No enforceable contract can contain illegal clauses and work Contracts can not remove some rights and never can bypass obligations. Talking to the police at times is a requirement by law, as is taking to the labor board. Responding to a subpoena is legally forced by the court. An NDA might limit the amount what you can say, and a contract might limit who you can sue, but can not ban you from suing at all. In germany, a contract that tries to curtail such requirements would be Sittenwidrig and make all clauses that try to limit the rights fully Void and nill ab initio - in fact, it can be used as evidence against the drafting party that they tried to do so. So to stay legal and keep the clause working in the limited fashion where it is not demanded, the clause cuts the contract to explicitly exclude such situations. |
Can I have my personal information redacted from evidence in a case that doesn't directly involve me? There is a case in the United States that has made its way through a city's municipal court, the district court, and is now going to be in the state's supreme court (Pennsylvania). I live in a different state (Ohio). The case is a civil one between two private companies, the plaintiff alleging copyright infringement for commercial gain, and the defendant is arguing the works were fair use. The copyrighted works in question were mass-produced by the defendant, one of which I purchased several years ago, unaware of the legal dispute at the time. My purchase transaction (along with my full name, address, phone number and email) was produced by the defendant into evidence, on a record of hundreds of other transactions, along with all their other customers' personal information. That evidence became part of the public record once it entered the district courts, as far as I can tell. As of the posting of this question, it's currently available for download directly from the district court's website, un-redacted. The case is now picking up some mild media attention, and it seems odd that a document listing private citizens' sensitive information is being released to the public in full without being redacted in some way by the courts. I've already seen the document posted in un-redacted form on dozens of legal discussion forums, YouTube videos as B-roll footage, etc. when searching for articles on the case. How can I get my personal information 'redacted' from the public record when A) the case doesn't directly involve me and B) the case is taking place in a different jurisdiction? Don't I have the right to protect this information unless I am directly party to a legal dispute? | You could probably hire a Pennsylvania lawyer to intervene in the case on your behalf and file a motion to seal the evidence in the case, and there is a good chance that it would be granted, and quite possibly, unopposed by the parties. But, the fact that it has already been made available to the public on the Internet could cause the court to deny your request on the grounds that it is futile to do so. | It's true that you can't prove what was in the envelope. But assuming this ends in small claims court or some sort of collections action lets play out how it works. The company is going to claim that they never got notice of cancellation. They will plead ignorance so they won't have any evidence of what you didn't send. That's obvious, but more on this later. You are going to have a trove of evidence. The emails you sent, the webforms you filled out, the voicemails you left. And finally, the letters that you sent. Let's think about the weight of evidence! At the very least you can ask them, if they claim they didn't get a cancellation from you, what did they get in that certified envelope from you? They'll need to produce whatever was in the envelope. Unless they claim that it was empty. At this point the judge will see exactly what is going on and you won't need to prove what was in the envelope. Legally, the way this works is covered by Rule 901. (a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. (b) Examples. The following are examples only — not a complete list — of evidence that satisfies the requirement (1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be. It's that last piece that matters here. You will take the stand and testify that the letter you brought to court is a true copy of the letter in the envelope. | The first thing that has to be done (in court, or via lawyer-to-lawyer communication) is that The Company has to prove that they own the copyright. If they accomplish that, you can defend yourself by providing proof of a license to download and redistribute. From what I can tell, you cannot directly prove that, since the rights-holder did not give you the license. The issue is that a third party cannot impose a license on a work simply by putting it out there with a file that claims to be a license from the artist. So this brings in the Free Music Archive: they presumably have some evidence that the rights holder did indeed grant the alleged license, and may be able to provide proof. Your argument may be credible, in the sense that you had a good-faith belief that the item was so licensed, and the website would provide a basis for concluding that that belief is reasonable. If the work was licensed, then the some rights holder would know that, but not necessarily the current one. Assume the artist made a recording, transferred the rights to Company A, who later sold the rights to Company B who is now coming after you. Artist may have licensed it when it was his, and forgot to tell A. A may have licensed it when they sold the license to B. Artist may have improperly licensed it after he sold the work to A (under the "I wrote it, I have the right to do whatever I want" non-legal theory). A might have improperly licensed the work after selling the right to B (maybe by mistakenly including it in a package deal, i.e. via bookkeeping error, rather than ignorance of the law). Or, they may simply have forgotten. If this is a DMCA takedown notice, the notice-giver could just be abusing the system. But we don't know how you were contacted, so I'll leave DMCA out of this for now. | Can I sue someone for publicly calling me a sex offender if I'm not one? Yes. However, in this particular case you need to take a preliminary step regardless of your jurisdiction, which I assume is somewhere in the U.S. Prior to filing any complaint (and I will repeat this below), it is in your best interest that you demand a retraction and removal of the defamatory falsehood. Be sure to show the prospective defendant(s) some proof that supports your pre-suit demand. You need to secure your ability to prove in court that you made that demand. For that reason, your requests should be in writing (email, and certified mail if practicable). If it is not by email, you should have the addressee at least sign a receipt copy of your demand letter. A demand of retraction is prerequisite in jurisdictions such as Texas and Florida. If you [or your lawyer] omit that step, the court will easily dismiss your complaint altogether. In other jurisdictions, such as Michigan, the request of retraction is a requirement only if you intend to pursue exemplary and punitive damages. See MCL 600.2911(2)(b). Regardless of the jurisdiction, your request or demand to each prospective defendant needs to be made prior to filing the corresponding complaint/pleadings in court. Even if your jurisdiction does not have that prerequisite, failing to request a retraction and removal of the defamatory falsehoods would allow the defendant to justify itself and/or obtain leniency on the basis that it was not aware that the registry information turned out to be disproved/inaccurate. In your complaint(s), you will pursue injunctive relief that consists of ordering the removal [from each website or post] of the defamatory falsehoods. It is also reasonable for you to also ask for monetary relief. You certainly have a claim of defamation per se, but a ruling granting you an award of substantive damages is doubtful unless the defendant refuses --or neglects-- to remove the inaccurate records. If the website owners/authors promptly remove the false records, it is going to be difficult or impossible to prove actual malice: that is, that they published the falsehoods (1) despite knowing them to be false, or (2) with reckless disregard of their truth. Without the ability to prove actual malice or that you suffered special damages (whether it is a loss of employment or other economic damages), the court would only grant you nominal damages, which is the negligible amount of one dollar. Lastly, beware that even the granting of injunctive relief might be ineffective. I [vaguely] recall a case where federal court ordered a removal from sex offender registry, but apparently the defendant ignored the order. I have no idea how much the plaintiff's lawyer charged him for the futile representation, but the last time I checked neither the problem was fixed nor did it appear that the attorney pushed any further to ensure compliance with the order. I will not disclose the name of the lawyer, since that would facilitate the unintended consequence of identifying the defamed plaintiff. | The most apparent potential offences would be under 18 U.S.C. § 1030, but these require the mens rea of "knowingly" or "intentionally" doing things without authorization, or doing so "with intent to defraud", etc. See also the Department of Justice's manual entry on this family of offences. Particularly relevant is this quote: As part of proving that the defendant acted knowingly or intentionally, the attorney for the government must be prepared to prove that the defendant was aware of the facts that made the defendant’s access unauthorized at the time of the defendant’s conduct. Given your stipulation that the person has unintentionally viewed or downloaded the material without authorization, this would not be a violation of 18 U.S.C. § 1030. | What factors might a court consider in these circumstances? Is it true that anyone can just walk up and file a document in any case, with no requirement to identify themselves? If nobody admits to filing a document, it is likely that the court would grant a motion to strike the document and disregard it (revising a past ruling if the issue was raised within the six months allowed for reconsidering rulings under Federal Rule of Civil Procedure 60(b) or the state equivalent). A court document must, on its face, indicate a filing person and be signed to be accepted by the clerk of the court pursuant to Federal Rule of Civil Procedure 11 or the state equivalent. But, if the document appears on its face to be legitimate, the person filing it will not generally be required to prove their identity. This happens even less often now than it used to (in the past, fake filings were often made by members of "sovereign citizens" movements to harass governmental officials), because in both the state courts were I practice and in federal court, documents must usually be filed with the court by lawyers via e-filing using a password protected e-filing account. Usually, only parties without lawyers and out of state lawyers who are still in the process of setting up their e-filing account file court documents in person. When documents are filed in person, they are also often delivered via courier rather than by the person who actually signed the documents. And, as a matter of practical reality, third-parties almost never file fake documents in court (in part, because there is usually someone present who is in a position to call attention to the fraud to the court). Still, this can happen, although it is very rare. I've only seen a situation like this come up once in twenty years of practice. (My account below oversimplifies some of the technical details of what happened to get to the gist of the points relevant to this question.) In that case, a lawyer was representing an ex-husband in a post-decree alimony modification case that had been appealed filed a bill of costs that she sought to recover on behalf of her client for the appeal, but she filed it in the wrong court (she filed it in the appellate court where she had represented her client, rather than, as required, in the trial court where another attorney had represented the ex-husband). When an order awarding him costs was not entered by any court, the ex-husband filed an (untimely) bill of costs in the trial court under his appellate lawyer's name using the appellate filing as a model, without her consent, by forging her name on the document. The lawyer didn't discover this (because she was retained only in the appeal and had never entered an appearance in the trial court and thus didn't have access to the trial court file, and because the court doesn't automatically send you a copy of your own filings) until I responded on behalf of the ex-wife to the forged bill of costs alleging that it was untimely which I served a copy of upon the ex-husband's lawyer as required by the rules. At that point, the ex-husband's lawyer immediately called me and the court to explain that she did not file this document and that it was forged (otherwise should could have been sanctioned for knowingly filing the bill of costs knowing that it was out of time and was frivolous at that point and could have been deemed to be responsible for further trial court proceedings of the ex-husband in the case, like keeping him appraised of deadlines, court rulings and filings by other lawyers in the case, since it appeared that she'd participated in the trial court case). Ultimately, the court declined to award the costs because they were filed in an untimely manner and because they were not really filed by the lawyer as claimed. So, the the court disregarded the bill of costs and denied this relief to the ex-husband. (If I was the judge, I would have hauled the ex-husband into court and held him in contempt of court sua sponte, but in this very busy court where hearings in divorcees are often scheduled two or more years out from the scheduling date, the judge didn't have the time to devote to issues like that.) | Intent would greatly factor into the case. As mentioned, possession of child pornography is illegal. There was a case, where a man had inadvertently downloaded such images. In the case, it was shown that there was sufficient evidence that it was accidental and without his knowledge. Presumably, if you by happenstance created an identical code through encryption/compiling, there would be a lack of evidence of intent or evidence of your intended use. For example, your stored password manager file happens to store data identical to an illegal image. The password manager output is provable and repeatable to show that it was simply circumstantial. If you have hundreds of such outputs that all "just happen to be illicit images" you would probably fall on the wrong side of reasonable doubt. As to whether you can keep the data, the programmers for the password manager would probably update their system to modify the output to avoid bad press. The general idea is that the "illegal number" is so incredibly specific that accidental cases are very unlikely to occur, and if it did, that there would be forensic evidence indicating intent and use. | Online file converters are legal: there is no law that prohibits a person from making a program available and executing online, including creating output in the form of a file. It is possible that some person may illegally copy copyright-protected material then use a website to modify that material, in which case the question of vicarious liability for copyright infringement could arise, so we appeal to the DMCA safe harbor provisions to see what the website must do. First, the owner of copyright must submit a properly constructed takedown notice to the website. Crucially, the notice must contain sufficient information that the website operator can find and take down the item(s) in question. Assuming that the complainant can supply the "where is it" information, then there is a notice and counter-notice routine where the uploader is informed and can deny the accusation – the website operator doesn't evaluate the merits of the claim, he only sees that the formalities were observed. If the operator follows the rules, he cannot be held vicariously liable. If the link does not expire and if it is somehow promulgated, the technical potential for being a contributor to copyright infringement becomes very real, but it puts the operator in no worse a legal position than Youtube. So the question is not just related to OCILLA, it is entirely covered by that law. Questions of how users or website owners are "supposed to" act don't figure into this. If the website owner does not comply with those provisions, they have no access to the safe harbor provisions, and they can be sued. However, the website itself remains legally "permitted" (there never was a prohibition of such a website). |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.